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THE  MODERN   LEGAL  PHILOSOPHY 
SERIES 


Philosophy  of  Law 


THE  MODERN  LEGAL  PHILOSOPHY 
SERIES 


Edited  by  a  Committee  of  the 
ASSOCIATION  OF  AMERICAN  LAW  SCHOOLS 


INTRODUCTION  TO  THE  SCIENCE  OF  LAW.  By  KARL 
GAREIS  of  the  University  of  Munich.  Translated  by  ALBERT 
KOCOUREK  of  Northwestern  University. 

THE  WORLD'S  LEGAL  PHILOSOPHIES.  By  FRITZ  BEROLZ- 
HEIMER  of  Berlin.  Translated  by  RACHEL  S.  JASTROW. 

COMPARATIVE  LEGAL  PHILOSOPHY,  applied  to  Legal 
Institutions.  By  LUIGI  MIRAGLIA  of  the  University  of 
Naples.  Translated  by  JOHN  LISLE  of  the  Philadelphia  Bar. 

GENERAL  THEORY  OF  LAW.  By  N.  M.  KORKUNOV  of  the 
University  of  St.  Petersburg.  Translated  by  W.  G.  HASTINGS 
of  the  University  of  Nebraska. 

LAW  AS  A  MEANS  TO  AN  END.  By  RUDOLF  VON  IHERING 
of  the  University  of  Berlin.  Translated  by  ISAAC  HUSIK  of 
the  University  of  Pennsylvania. 

MODERN  FRENCH  LEGAL  PHILOSOPHY.  By  A.  FOUILLEE, 
J.  CHARMONT,  L.  DUGUIT  and  R.  DEMOGUE  of  the  Uni- 
versities of  Paris,  Montpellier,  Bordeaux  and  Lille.  Trans- 
lated by  MRS.  F.  W.  SCOTT  and  JOSEPH  P.  CHAMBERLAIN. 

SCIENCE  OF  LEGAL  METHOD,  SELECT  ESSAYS.  By 
Various  Writers. 

THE  FORMAL  BASES  OF  LAW.  By  G.  DEL  VECCHIO  of  the 
University  of  Bologna.  Translated  by  JOHN  LISLE  of  the 
Philadelphia  Bar. 

THE  PHILOSOPHY  OF  LAW.  By  JOSEF  KOHLER  of  the  Uni- 
versity of  Berlin.  Translated  by  ADALBERT  ALBRECHT. 


PHILOSOPHY  OF  LAW 

BY 

JOSEF  KOHLER 

Professor  of  Law  in  the  University  of  Berlin 
TRANSLATED  FROM  THE  GERMAN  BY 

ADALBERT  ALBRECHT 

Associate  Editor  of  the  Journal  of  Criminal  Law  and  Criminology 

WITH  AN  EDITORIAL  PREFACE  BY 

ALBERT  KOCOUREK 
Lecturer  on  Jurisprudence  in  Northwestern  University 

AND  WITH  INTRODUCTIONS  BY 

ORRIN  N.  CARTER 
Justice  of  the  Supreme  Court  of  Illinois 

AND 

WILLIAM  CALDWELL 

Professor  of  Logic  and  Moral  Philosophy  in    McGill    University* 
Montreal 


Jfoat  fork 
THE  MAGMILLAN  COMPANY 

1921 

All  rights  reserved 


119041 


COPYRIGHT  1914 
BY  THE  BOSTON  BOOK  COMPANY 


EDITORIAL  COMMITTEE  OF  THE  ASSOCIATION 
OF  AMERICAN  LAW  SCHOOLS 


JOSEPH  H.  DRAKE,  Professor  of  Law,  University  of  Michigan. 
ALBERT   KOCOUREK,    Lecturer   on   Jurisprudence,    Northwestern 

University. 

ERNEST  G.  LORENZEN,  Professor  of  Law,  University  of  Wisconsin. 
FLOYD  R.  MECHEM,  Professor  of  Law,  University  of  Chicago. 
ROSCOE  POUND,  Professor  of  Law,  Harvard  University. 
ARTHUR  W.  SPENCER,  Editor  of  the  Green  Bag,  Boston,  Mass. 
JOHN  H.  WlGMORE,  Chairman,  Professor  of  Law,  Northwestern 

University. 


LIST  OF  TRANSLATORS 

ADALBERT  ALBRECHT,  North  Easton,  Mass.  (Associate  Editor  of 

the  Journal  of  Criminal  Law  and  Criminology). 
JOSEPH    P.    CHAMBERLAIN,    Columbia    University,    New    York, 

N.  Y. 
WILLIAM  G.  HASTINGS,   Lincoln,  Neb.  (Dean  of  the  Faculty  of 

Law,  State  University.) 
ROBERT  L.  HENRY,  JR.,  Grand  Forks,  N.  D.   (Professor  of  Law  in 

the  State  University). 
ISAAC   HUSIK,  Philadelphia,    Pa.   (Lecturer  on  Philosophy  in  the 

University  of  Pennsylvania) . 
MRS.  RACHEL  SZOLD  JASTROW,  Madison,  Wis. 
ALBERT  KOCOUREK,  Chicago,  111.  (of  the  Editorial  Committee). 
JOHN  LISLE,  Philadelphia,  Pa.  (of  the  Philadelphia  Bar). 
MRS.  ETHEL  FORBES  SCOTT,  State  University,  Urbana,  111. 
FREDERIC    S.  SPIEGEL,  Cincinnati,  Ohio  (Judge  of  the  Superior 

Court). 


GENERAL    INTRODUCTION  TO 
THE  SERIES 

BY  THE  EDITORIAL  COMMITTEE 


"Until  either  philosophers  become  kings,"  said  Soc- 
rates, "or  kings  philosophers,  States  will  never  succeed 
in  remedying  their  shortcomings."  And  if  he  was 
loath  to  give  forth  this  view,  because,  as  he  admitted, 
it  might  "sink  him  beneath  the  waters  of  laughter  and 
ridicule,"  so  to-day  among  us  it  would  doubtless  resound 
in  folly  if  we  sought  to  apply  it  again  in  our  own  field 
of  State  life,  and  to  assert  that  philosophers  must  be- 
come lawyers  or  lawyers  philosophers,  if  our  law  is 
ever  to  be  advanced  into  its  perfect  working. 

And  yet  there  is  hope,  as  there  is  need,  among  us  to-day, 
of  some  such  transformation.  Of  course,  history  shows 
that  there  always  have  been  cycles  of  legal  progress, 
and  that  they  have  oft°n  been  heralded  and  guided  by 
philosophies.  But  particularly  there  is  hope  that  our 
own  people  may  be  the  generation  now  about  to  exem- 
plify this. 

There  are  several  reasons  for  thinking  our  people 
apt  thereto.  But,  without  delaying  over  the  grounds 
for  such  speculations,  let  us  recall  that  as  shrewd  and 
good-natured  an  observer  as  DeTocqueville  saw  this 
in  us.  He  admits  that  "in  most  of  the  operations  of 
the  mind,  each  American  appeals  to  the  individual  exer- 
cise of  his  own  understanding  alone;  therefore  in  no 
country  in  the  civilized  world  is  less  attention  paid  to 
philosophy  than  in  the  United  States."  But,  he  adds, 
"the  Americans  are  much  more  addicted  to  the  use  of 
general  ideas  than  the  English,  and  entertain  a  much 


vi  GENERAL  INTRODUCTION 

greater  relish  for  them."  And  since  philosophy  is, 
after  all,  only  the  science  of  general  ideas  —  analyzing, 
restating,  and  reconstructing  concrete  experience  — 
we  may  well  trust  that  (if  ever  we  do  go  at  it  with  a  will) 
we  shall  discover  in  ourselves  a  taste  and  high  capacity 
for  it,  and  shall  direct  our  powers  as  fruitfully  upon  law 
as  we  have  done  upon  other  fields. 

Hitherto,  to  be  sure,  our  own  outlook  on  juristic 
learning  has  been  insular.  The  value  of  the  study  of 
comparative  law  has  only  in  recent  years  come  to  be 
recognized  by  us.  Our  juristic  methods  are  still  primi- 
tive, in  that  we  seek  to  know  only  by  our  own  experi- 
ence, and  pay  no  heed  to  the  experience  of  others. 
Our  historic  bond  with  English  law  alone,  and  our  con- 
sequent lack  of  recognition  of  the  universal  character 
of  law  as  a  generic  institution,  have  prevented  any  wide 
contact  with  foreign  literatures.  While  heedless  of 
external  help  in  the  practical  matter  of  legislation,  we 
have  been  oblivious  to  the  abstract  nature  of  law. 
Philosophy  of  law  has  been  to  us  almost  a  meaningless 
and  alien  phrase.  "All  philosophers  are  reducible  in 
the  end  to  two  classes  only:  utilitarians  and  f utilitari- 
ans," is  the  cynical  epigram  of  a  great  wit  of  modern 
fiction.1  And  no  doubt  the  philistines  of  our  profession 
would  echo  this  sarcasm. 

And  yet  no  country  and  no  age  have  ever  been  free 
(whether  conscious  of  the  fact  or  not)  from  some  drift 
of  philosophic  thought.  "In  each  epoch  of  time,"  says 
M.  Leroy,  in  a  brilliant  book  of  recent  years,  "there  is 
current  a  certain  type  of  philosophic  doctrine  —  a  phil- 
osophy deep-seated  in  each  one  of  us,  and  observable 
clearly  and  consciously  in  the  utterances  of  the  day  — 
alike  in  novels,  newspapers,  and  speeches,  and  equally 

*M.  Dumaresq,  in  Mr.  Paterson's  "The  Old  Dance  Master." 


GENERAL  INTRODUCTION  vii 

in  town  and  country,  workshop  and  counting-house." 
Without  some  fundamental  basis  of  action,  or  theory 
of  ends,  all  legislation  and  judicial  interpretation  are 
reduced  to  an  anarchy  of  uncertainty.  It  is  like  mathe- 
matics without  fundamental  definitions  and  axioms. 
Amidst  such  conditions,  no  legal  demonstration  can  be 
fixed,  even  for  a  moment.  Social  institutions,  instead 
of  being  governed  by  the  guidance  of  an  intelligent  free 
will,  are  thrown  back  to  the  blind  determinism  of  the 
forces  manifested  in  the  natural  sciences.  Even  the 
phenomenon  of  experimental  legislation,  which  is  pecu- 
liar to  Anglo-American  countries,  cannot  successfully 
ignore  the  necessity  of  having  social  ends. 

The  time  is  ripe  for  action  in  this  field.  To  quote  the 
statement  of  reasons  given  in  the  memorial  presented  at 
the  annual  meeting  of  the  Association  of  American  Law 
Schools  in  August,  1910:  — 


The  need  of  the  series  now  proposed  is  so  obvious  as  hardly  to 
need  advocacy-  We  are  on  the  threshold  of  a  long  period  of  construc- 
tive readjustment  and  restatement  of  our  law  in  almost  every  depart- 
ment. We  come  to  the  task,  as  a  profession,  almost  wholly  untrained 
in  the  technic  of  legal  analysis  and  legal  science  in  general.  Neither 
we,  nor  any  community,  could  expect  anything  but  crude  results 
without  thorough  preparation.  Many  teachers,  and  scores  of 
students  and  practitioners,  must  first  have  become  thoroughly 
familiar  with  the  world's  methods  of  juristic  thought.  As  a  first 
preparation  for  the  coming  years  of  that  kind  of  activity,  it  is  the 
part  of  wisdom  first  to  familiarize  ourselves  with  what  has  been 
done  by  the  great  modern  thinkers  abroad  —  to  catch  up  with  the 
general  state  of  learning  on  the  subject.  After  a  season  of  this,  we 
shall  breed  a  family  of  well-equipped  and  original  thinkers  of  our 
own.  Our  own  law  must,  of  course,  be  worked  out  ultimately  by 
our  own  thinkers;  but  they  must  first  be  equipped  with  the  state 
of  learning  in  the  world  to  date. 

How  far  from  "unpractical"  this  field  of  thought  and  research 
really  is  has  been  illustrated  very  recently  in  the  Federal  Supreme 
Court,  where  the  opposing  opinions  in  a  great  case  (Kukn  v.  Fair- 


viii  GENERAL  INTRODUCTION 

mont  Coal  Co.)  turned  upon  the  respective  conceptions  of  "law" 
in  the  abstract,  and  where  Professor  Gray's  recent  work  on  "The 
Nature  and  Sources  of  the  Law"  was  quoted,  and  supplied  direct 
material  for  judicial  decision. 

Acting  upon  this  memorial,  the  following  resolution 
was  passed  at  that  meeting:  — 

That  a  committee  of  five  be  appointed  by  the  president,  to  arrange 
for  the  translation  and  publication  of  a  series  of  continental  master- 
works  on  jurisprudence  and  philosophy  of  law. 

The  committee  spent  a  year  in  collecting  the  material. 
Advice  was  sought  from  a  score  of  masters  in  the  leading 
universities  of  France,  Germany,  Italy,  Spain,  and  else- 
where. The  present  series  is  the  result  of  these  labors. 

In  the  selection  of  this  series,  the  committee's  pur- 
pose has  been,  not  so  much  to  cover  the  whole  field  of 
modern  philosophy  of  law,  as  to  exhibit  faithfully  and 
fairly  all  the  modern  viewpoints  of  any  present  impor- 
tance. The  older  foundation-works  of  two  generations 
ago  are,  with  some  exceptions,  already  accessible  in 
English  translation.  But  they  have  been  long  sup- 
planted by  the  products  of  newer  schools  of  thought 
which  are  offered  in  this  series  in  their  latest  and  most 
representative  form.  It  is  believed  that  the  complete 
series  will  represent  in  compact  form  a  collection  of 
materials  whose  equal  cannot  be  found  at  this  time  in 
any  single  foreign  literature. 

The  committee  has  not  sought  to  offer  the  final 
solution  of  any  philosophical  or  juristic  problems;  nor 
to  follow  any  preference  for  any  particular  theory  or 
school  of  thought.  Its  chief  purpose  has  been  to  present 
to  English  readers  the  most  representative  views  of  the 
most  modern  writers  in  jurisprudence  and  philosophy 
of  law.  The  series  shows  a  wide  geographical  represen- 
tation; but  the  selection  has  not  been  centered  on  the 


GENERAL  INTRODUCTION  ix 

notion  of  giving  equal  recognition  to  all  countries. 
Primarily,  the  desire  has  been  to  represent  the  various 
schools  of  thought;  and,  consistently  with  this,  then  to 
represent  the  different  chief  countries.  This  aim,  how- 
ever, has  involved  little  difficulty;  for  Continental 
thought  has  lines  of  cleavage  which  make  it  easy  to  rep- 
resent the  leading  schools  and  the  leading  nations  at 
the  same  time.  Germany,  for  example,  is  represented 
in  modern  thought  by  a  preponderant  metaphysical 
influence.  Italy  is  primarily  positivist,  with  subordinate 
German  and  English  influences.  France  in  its  modern 
standpoint  is  largely  sociological,  while  making  an  effort 
to  assimilate  English  ideas  and  customs  in  its  theories 
of  legislation  and  the  administration  of  justice.  Spain, 
Austria,  Switzerland,  Hungary,  are  represented  in  the 
Introductions  and  the  shorter  essays;  but  no  country 
other  than  Germany,  Italy,  and  France  is  typical  of  any 
important  theory  requiring  additions  to  the  scope  of 
the  series. 

To  offer  here  an  historical  introduction,  surveying  the 
various  schools  of  thought  and  the  progress  from  past 
to  present,  was  regarded  by  the  committee  as  unneces- 
sary. The  volumes  of  Dr.  Berolzheimer  and  Professor 
Miraglia  amply  serve  this  purpose;  and  the  introductory 
chapter  of  the  latter  volume  provides  a  short  summary 
of  the  history  of  general  philosophy,  rapidly  placing 
the  reader  in  touch  with  the  various  schools  and  their 
standpoints.  The  series  has  been  so  arranged  (in  the 
numbered  list  fronting  the  title  page)  as  to  indicate  that 
order  of  perusal  which  will  be  most  suitable  for  those  who 
desire  to  master  the  field  progressively  and  fruitfully. 

The  committee  takes  great  pleasure  in  acknowledg- 
ing the  important  part  rendered  in  the  consummation 
of  this  project,  by  the  publisher,  the  authors,  and  the 
translators.  Without  them  this  series  manifestly  would 
have  been  impossible. 


x  GENERAL  INTRODUCTION 

To  the  publisher  we  are  grateful  for  the  hearty  spon- 
sorship of  a  kind  of  literature  which  is  so  important  to 
the  advancement  of  American  legal  science.  And  here 
the  Committee  desires  also  to  express  its  indebtedness 
to  Elbert  H.  Gary,  Esq.,  of  New  York  City,  for  his 
ample  provision  of  materials  for  legal  science  in  the 
Gary  Library  of  Continental  Law  (in  Northwestern 
University).  In  the  researches  of  preparation  for  this 
Series,  those  materials  were  found  indispensable. 

The  authors  (or  their  representatives)  have  cordially 
granted  the  right  of  English  translation,  and  have  shown 
a  friendly  interest  in  promoting  our  aims.  The  com- 
mittee would  be  assuming  too  much  to  thank  these 
learned  writers  on  its  own  behalf,  since  the  debt  is  one 
that  we  all  owe. 

The  severe  labor  of  this  undertaking  fell  upon  the 
translators.  It  required  not  only  a  none  too  common 
linguistic  skill,  but  also  a  wide  range  of  varied  learning 
in  fields  little  travelled.  Whatever  success  may  attend 
and  whatever  good  may  follow  will  in  a  peculiar 
way  be  attributable  to  the  scholarly  labors  of  the  several 
translators. 

The  committee  finds  special  satisfaction  in  having 
been  able  to  assemble  in  a  common  purpose  such  an  array 
of  talent  and  learning;  and  it  will  feel  that  its  own  small 
contribution  to  this  unified  effort  has  been  amply  recom- 
pensed if  this  series  will  measurably  help  to  improve 
and  to  refine  our  institutions  for  the  administration  of 
justice. 


CONTENTS 

Page 

General  Introduction  to  the  Series     v 

Editorial  Preface  to  this  Volume,  by  Albert  Kocourek   xv 

Introduction  by  Orrin  N.  Carter     xxv 

Introduction  by  William  Caldwell xxxv 

Author's  Preface  xliii 

GENERAL  PART 

CHAPTER  I 
THE  PHILOSOPHY  OF  LAW  AND  ITS  SIGNIFICANCE 

Section    I.     Introduction,  with  Excursus 3 

Section  II.     Philosophy  and  the  Philosophy  of  Law    12 

CHAPTER  II 
THE  DEVELOPMENT  OF  CULTURE 

Section  III.     Logical  and  Illogical  Elements 28 

Section  IV.     Evolution  and  Psychic  Life    36 

1.  General  Remarks 36 

2.  The  Psychic  Disposition   43 

3.  Psychic  Impulses    45 

Section    V.     Manner  of  Development    49 

1.  Collectivity  and  Individualization 49 

2.  The  Culture  of  Wealth  in  Particular    54 

CHAPTER     III 
CULTURE  AND  LAW 

Section  VI 58 

CHAPTER  IV 
LEGAL  ORDER  AND  PEACEABLE  REGULATION 

Section  VII 63 

CHAPTER      V 

THE  TECHNIC  OF  THE  LAW 

Section  VIII.     I.  Rights  and  the  Cultural  Order 66 

1.  General  Remarks  66 

2.  General  Rights  and  Limited  Rights 71 

(a)  Servitudes 71 

(b)  Securities , , 78 


xii  CONTENTS 

Section  IX.       II.  Personality  and  the  Activity  of  the  Person  ..  80 

Section    X.     III.  Claims   84 

Section  XI.     IV.  Legal  Order    86 

1.  Sources  of  the  Law    86 

2.  Equity  and  Law 86 

3.  Dual  System  of  Acquiring  Legal  Rights  87 

4.  Contingency  and  Legal  Order 89 


SPECIAL  PART 
A.     The  Law  of  Individual  Persona 

CHAPTER  VI 

THE  LAW  OF  PERSONS 

Section   XII.      I.  The  Law  of  Class   92 

1.  Slavery ' 92 

2.  Nobility   96 

Section  XIII.     II.  Family  Law    98 

1.  General  Remarks 98 

2.  Exogamy     103 

3.  Family  105 

(a)  Organization    105 

(&)  Family  Education , . .   108 

(c)  Family  Property 109 

(d)  Illegitimate  Children Ill 

4.  Artificial  Relationships   114 

(a)  General  Remarks 114 

(b)  Adoption   115 

(c)  Blood-Fraternity 117 

.  5.  Substitutive  Family  Law  1 18 

CHAPTER  VII 

THE  LAW  OF  PROPERTY 

Section  XIV.     I.  The  Law  of  Things 120 

1.  General  Remarks   120 

2.  Acquisition  and  Loss  of  Ownership    ....   127 

(a)  Original  Acquisition   127 

(6)  Barter  and  its  Consequences 129 

(c)  Extinction  . . , , 133 


CONTENTS 


Section  XV.     II.  The  Law  of  Obligations 134 

First  Division :  The  Law  of  Obligations  in  General 134 

1.  Foundations  of  the  Law  of  Obligations   134 

2.  Development  of  the  Law  of  Obligations 144 

3.  Extinction  of  Debts  150 

4.  Securities 152 

(a)  Pledge   152 

(b)  Suretyship 158 

(c)  Joint  Liability 161 

Second  Division:  The  Law  of  Obligations  in  Detail 163 

Section     XVI.     First  Sub-division:  Barter 163 

1.  Barter  of  Things  163 

(a)  Foundations 163 

(b)  The  Evolution  of  Barter 169 

2.  The  Barter  of  Value  —  Interest 170 

3.  Commerce  in  Risks 175 

4.  Commerce  in  Service 177 

Section    XVII.     Second  Sub-division:  Partnership 179 

Section  XVIII.     Third  Sub-division:  Gifts 184 

Section    XIX.     Fourth  Sub-division :  Compensation   187 

Section      XX.     III.  Property  asa  Whole 191 

1.  General  Remarks 191 

2.  Inheritance  192 

(a)  In  General  192 

(b)  Indivisible  and  Divisible  Inherit- 

ance     196 

(c)  Disposal  of  Property  after  Death  .   199 

B.    The  Law  of  the  Body  Politic 

CHAPTER  VIII 
STATE  LAW 

First  Main  Division:  The  State    207 

Section     XXL         I.  Nature  and  Importance 207 

1.  The  State  as  a  Personality    207 

2.  The  State  and  the  Individual 209 

3.  The  State  and  its  Organs    210 

Section  XXII.       II.  The  Evolution  of  the  State 211 

SectionXXIII.     III.  The  State  Idea    216 

1.  State  Theorists 216 

(a)  Church  and  State 221 

(6)  Contract  Theory  of  the  State  223 

2.  Statesmen  . .  .  .  227 


xiv  CONTENTS 

Section  XXIV.      IV.  The  Organization  of  the  State 230 

1.  General  Remarks 230 

2.  Kingship 232 

3.  The  Popular  Assembly   237 

Second  Main  Division:  The  Activity  of  the  State 241 

Section  XXV.     A.     General  Remarks    241 

B.    The  Administration  of  Justice 243 

Section  XXVI.     I.  Legal  Procedure   243 

1.  The  Legal  Procedure  of  the  Civil  Law    243 

(a)  Fundamental  Ideas    243 

(6)  Religion  and  Reason  in  Procedure  250 
(aa)  Courts   255 

(c)  The  Philosophy  of  Legal  Procedure  257 

(d)  Proof  Founded  on  Reason   262 

(e)  Execution  and  Bankruptcy 264 

2.  Administrative  Jurisdiction 267 

Section  XXVII.     II.  Criminal  Law 268 

1.  Criminal  Law  in  the  Proper  Sense 268 

(a)  Kin-Revenge    268 

(b)  Internal  and  External  Aspect  of 

Acts    275 

(c)  State  Criminal  Law 276 

(aa)  General  Remarks 276 

(M)  Justice   281 

(cc)  The  Need  of  Punishment.  .   286 
(dd)  Details  of  Criminal  Law  . .  287 

2.  The  Realization  of  Criminal  Law 291 

Section  XXVIII.     III.  Peaceable  Procedure 293 

CHAPTER  IX 

THE  LAW  OF  HUMAN  SOCIETY  — THE  LAW  OF  NATIONS 
Section  XXIX.        I.  Law  of  Nations  and  Federated  States.  . .  294 

Section   XXX.      II.  Super-National  Law 299 

Section  XXXI.     III.  Achievements  and  Aspirations   304 


First  Appendix.     Author's  Bibliography 311 

Second  Appendix.   Kohler's  Philosophy  of  Law,  by  Adolf  Lasson  319 
Third     Appendix.       Kohler's      Philosophical      Position,     by 

J.  Castillejo  y  Duarte 335 

Index..  385 


EDITORIAL  PREFACE 

BY  ALBERT  KocouREK1 


To  attain  the  highest  rank  in  a  learned  profession  is  a 
great  achievement  in  any  age;  but  for  a  writer  to  be 
accorded  indisputable  juristic  leadership  while  yet  in  the 
midst  of  his  activities,  and  in  a  period  of  the  world's 
history  unlike  any  other  in  its  specialism  of  knowledge 
and  its  competitive  struggle  for  learning,  is  a  highly 
noteworthy  distinction.  One  of  our  most  competent 
investigators,  himself  an  authority  in  jurisprudence,  and 
holding  entirely  contrary  fundamental  notions  as  to  the 
metaphysical  basis  of  law,  says,  speaking  of  the  neo- 
Hegelians:  "The  leader  of  this  school,  Josef  Kohler, 
without  question  the  first  of  living  jurists,  is  remarkable 
for  the  breadth  as  well  as  for  the  depth  of  his  legal 
scholarship.  A  pioneer  in  comparative  legal  history,  he 
has  made  himself  an  authority  not  merely  upon  the  gen- 
eral subject,  but  upon  more  than  one  special  branch, 
and  upon  the  legal  history  of  more  than  one  primitive 
people.  At  the  same  time,  he  has  made  himself  an 
authority  upon  such  specialized  subjects  of  dogmatic 
law  as  the  law  of  bankruptcy  and  patent  law,  has  made 
important  contributions  to  modern  criminalistic,  has 
written  a  text-book  of  the  German  Civil  Code,  and  has 
taken  the  lead  in  the  most  active  and  most  widely 
accepted  movement  in  the  modern  Philosophy  of  Law. 
No  one  else  has  come  so  near  to  taking  all  legal  knowledge 

1  Lecturer  on  Jurisprudence  in  Northwestern  University,  and  mem- 
ber of  the  Editorial  Committee  for  this  Series. 


xvi  EDITORIAL   PREFACE 

for  his  province.  No  one,  therefore,  is  so  well  prepared 
to  reduce  all  legal  knowledge  to  a  system."  * 

Whether,  in  the  present  case,  the  remarks  of  Solon  on 
happiness,  in  Plutarch's  narrative,  have  any  applica- 
tion to  the  matter  of  fame,  may  be  waived ;  and  we  may 
readily  accept  these  generous  conclusions  issuing  out  of 
a  hostile  camp  of  legal  philosophy. 

Yet,  something  more  should  be  said  regarding  the 
amazing  extent  and  variety  of  Kohler's  intellectual 
creation.  On  the  twenty-fifth  anniversary  of  his  pro- 
fessorial labors,  the  "Juristisches  Literaturblatt"  (Ber- 
lin) in  a  special  supplement,2  published  an  index  of  his 
writings  which  at  that  time  numbered  526  separate  titles. 
A  complete  statement  of  Kohler's  works  within  his  life- 
time would  be  a  matter  of  some  practical  difficulty; 
since  new  announcements  are  constantly  appearing  show- 
ing his  restless  activity  in  this  or  that  department  of 
law,  in  philosophy,  in  general  literature,  or  in  the  fine 
arts.  Before  a  list  could  be  made  up  and  put  into 
printer's  type,  it  would  be  incomplete ;  and  such  an  effort 
would  therefore  exactly  parallel  the  Eleatic  problem 
of  Achilles  and  the  tortoise.  Kohler's  extraordinary 
creative  fertility  calls  to  mind  a  countryman  born  just  a 
hundred  years  earlier  —  Goethe.  There  was  a  collec- 
tion of  Goethe's  works,  published  in  his  lifetime,  which 
numbered  forty  volumes,  and  which  was  increased  by 
posthumous  writings  by  twenty  additional  volumes. 
The  works  of  lawyers  are  not  usually  collected,  as  in 
other  fields  of  literature;  and  the  present  writer  does 
not  know  the  extent  of  Kohler's  works,  measured  by  the 
Goethe  standard  of  bulk;  but  it  is  unquestionable  that 
the  total  at  this  moment  would  exhibit  a  remarkable 

1  Roscoe  Pound,  "The  Scope  and  Purpose  of  Sociological  Jurispru- 
dence" (reprinted  from  The  Harvard  Law  Review.  Vol.  XXIV,  No.  8, 
and  Vol.  XXV.  Nos.  2  and  6;  Cambridge.  1912),  p.  155,  seq. 

*  Bd.  XV,  30  September,  1903. 


EDITORIAL   PREFACE  xvii 

showing  of  industry,  to  pass  by  entirely  the  quality  of 
the  labor. 

As  Goethe  was  nearly  everything  in  letters,  and 
many  things  besides  —  lawyer,  art  critic,  theatre  direc- 
tor, statesman,  scientist;  so  Kohler  has  written  authori- 
tatively in  many  departments  of  the  law,  and  been 
active  in  many  other  ways,  —  as  philosopher,  poet, 
musician,  art  critic,  ethnologist,  criminologist,  teacher; 
with  all  the  inspiration  of  the  former,  and  without  his 
human  frailties. 

What  has  been  said  of  the  extent  of  Kohler's  writing 
can  give  no  adequate  notion  of  its  astounding  range. 
When  a  writer's  contributions  are  accepted  in  journals 
of  standing  and  authority,  he  naturally  is  also  credited 
with  authority;  but  when  such  a  writer  is  able  to  make 
himself  heard  in  a  half-dozen  different  circles  of  learn- 
ing he  is  regarded  as  one  possessed  of  unusual  talents. 
But  what  shall  be  said  of  a  man  who  seems  to  have 
made  an  impression  on  a  score  or  scores  of  fields  of 
specialized  effort?  Closer  inspection  of  the  list  above 
referred  to,  which,  since  its  date,  has  doubtless  been 
augmented  by  hundreds  of  titles,  shows,  to  mention  only 
general  subjects,  Kohler's  interest  in  such  matters  as 
Philosophy  of  Law,  General  Jurisprudence,  History  of 
Civil  Law,  Obligations,  the  Law  of  Things,  the  Law  of 
Personality,  the  Law  of  Immaterial  Things,  Family  Law, 
Succession,  Commercial  Law,  Maritime  Law,  the  Law 
of  Insurance,  Civil  Procedure,  Bankruptcy,  Criminal 
Law,  Criminal  Procedure,  Public  and  Administrative 
Law,  Comparative  Law,  Legal  Ethnology,  History, 
Folk-lore,  ^Esthetics,  Music  Criticism  and  Composi- 
tion, Biography,  Humor,  and  Poetry. 

The  detail  is  even  more  surprising.  Thus,  we  find 
such  decided  contrasts  as  a  book  on  patent  law  of 
nearly  a  thousand  pages,  against  which  we  may  oppose, 


xviii  EDITORIAL  PREFACE 

at  random,  something  from  another  world,  his  opus  8,  a 
composition  for  the  voice  with  a  piano  accompaniment; 
or,  again,  a  volume  of  studies  on  the  Law  of  Pledge, 
against  an  essay  on  the  Veronese  school  of  painting; 
and  so  on  to  a  length  to  make  one  marvel  if  after  all 
Kohler  is  not,  like  Homer,  something  of  a  myth,  an  illu- 
sion of  literature  personified;  or  perhaps,  if  his  his- 
toricity cannot  be  disputed,  whether  it  may  not  be  said 
of  him,  as  has  been  said  of  other  men  who  have  been 
prolific  or  versatile  in  creation,  that  these  many  titles 
are  the  work  of  many  minds,  and  that  Kohler  has  been 
after  the  fashion  of  the  elder  Dumas,  only  the  directing 
and  responsible  patron. 

Among  the  important  works3  of  Kohler  up  to  the  year 
1903  are  the  following: 

GENERAL  JURISPRUDENCE 

(3)  "Die  Ideale  im  Recht"  (Berlin,  1891,  pp.  105;   also  translated 

into  Polish). 
(12)   "Einfiihrung  in  die   Rechtswissenschaft"  (Leipzig,  1902,   pp. 

208;  now  in  the  4th  ed.;  also  translated  into  Russian). 

CIVIL  LAW 

(20)  "Rechtsfalle    zum    Studium    des    franzosischen   Zivilrechts" 
(Mannheim,  1877-8,  pp.  112). 

(21)  "Gesammelte  Abhandlungen  aus  dem  gemeinen  und  franzosi- 
schen Zivilrecht"  (Mannheim,  1883,  pp.  490). 

(23)  "Zwolf  Studien  zum  B.G.B."  (Berlin,  1900,  pp.  379). 

(24)  "Burgerliches  Recht"  (in  Holtzendorff-Kohler's  "Encyclopadie 
der  Rechtswissenschaft,"  6th  ed.,  Leipzig,  1903,  pp.  95). 

(25)  "Lehrbuch  des  Biirgerlichen  Rechts  nach  dem  Biirgerlichen 
Gesetzbuche"  I,  (Berlin,  1904);    (a  second  volume  has  since  been 
published). 

(52)    "Das   romische    Recht   am    Niederrhein"    (with    Liesegang); 
(Stuttgart,   1896-98,  pp.  307). 

*  Reference  is  made  generally  to  first  editions;  and  the  works  noted 
are  from  those  entered  in  the  index  of  the  "Juristisches  Literaturblatt." 
The  original  serial  numbers  are  retained  and  shown  in  parentheses  at  the 
left  of  each  title. 


EDITORIAL  PREFACE  xix 

(63)  "Zur  Lehre  von  den  Pertinenzen"  (Ihering's  Jahrbucher,  N.  F. 

14  Bd.,  1888,  pp.  183). 
(66)  "tiber  den  Willen  im  Privatrechte"  (Ihering's  J.,  28  Bd.,  1889, 

pp.  120). 
(88)  "Die  Menschenhulfe  im  Privatrecht"   (Ihering's  J.,  25  Bd., 

1887,  pp.  140). 

(104)  "Pfandrechtliche  Forschungen"  (Jena,  1882,  pp.  369). 
(107)  "Der  Dispositionsniessbrauch"   (Ihering's  J.,  24  Bd.,  1886, 

pp.  141). 
(114)   "Beitrage  zum    Servitutenrecht"    (Archiv  fiir  Civ.   Praxis, 

87  Bd.,  1897,  pp.  155). 
(129)  "Die  Idee  des  geistigen    Eigentums"  (Archiv  fur  C.  P.,  82 

Bd.,  1894,  pp.  101). 

(133)  "Industrierechtliche  Abhandlungen  und  Gutachten"  (Berlin, 
1899,  pp.  236). 

(134)  "Autor-  und  industrierechtliche  Abhandlungen  und  Gutachten" 
(Berlin,  1901,  pp.  221). 

(135)  "Das  Recht  des  Markenschutzes"  (Wurzburg,  1885,  pp.  580). 
(160)  "Das  Autorrecht"  (Jena,  1880,  pp.  352). 

(166)  "Das  literarische  und  artistische  Kunstwerk  und  sein  Autor- 

schutz"  (Mannheim,  1892,  pp.  205). 
(170)  "Autorrechtliche    Studien"  (Archiv  C.  P.,  85  Bd.,  1896,  pp. 

121). 

(174)  "Deutsches  Patentrecht,"  (Mannheim,  1878,  pp.  739). 
(177)    "Forschungen    aus    dem    Patentrecht"    (Mannheim,    1888, 

pp.  126). 
(194)  "Handbuch  des  deutschen  Patentrechts"  (Mannheim,  1901, 

pp.  971). 
(224)  "Zivilprozess-  und    Konkursrecht"   (in    Holtzendorff-Kohlet 

Ency.  pp.  158). 
(246)  "Prozessrechtliche  Forschungen"  (Berlin,  1889,  pp.  151). 

(250)  "Ungehorsam  und  Vollstreckung  im  Zivilprozess"  (Freiburg 
i.  B.,  1894,  pp.  160). 

(251)  "Gesammelte    Beitrage    zum    Zivilprozess"    (Berlin,    1894, 
pp.  604). 

(267)  "Leitfaden  des  Deutschen  Konkursrechts  fiir  Studierende" 
(Stuttgart,  1893,  pp.  220;  2d  ed.  1903,  pp.  374). 

CRIMINAL  LAW 

(274)  "Studien  aus  dem  Strafrecht"  I  (Mannheim,  1890,  pp.  238). 
(279)  "Die  peinliche  Gerichtsordnung  Kaiser  KarlsV"  (with  Scheel); 
(Halle,  1900,  pp.  167). 


xx  EDITORIAL  PREFACE 

(281)    "Die   Bambergische    Halsgerichtsordnung"     (with    Scheel); 
(Halle,  1902,  pp.  312). 

COMPARATIVE  LAW 
(321)  "Rechtsphilosophie  und  Universalrechtsgeschichte"  (in  Holt- 

zendorff-Kohler,  1903,  pp.  1-69). 

(356)  "ZurUrgeschichteder  Ehe"  (Stuttgart,  1897,  pp.  167). 
(368)  "Rechtsvergleichende  Studien"  (Berln,  1889,  pp.  252). 
(389)  "Des  Recht  der  Azteken"  (Stuttgart,  1892,  pp.  111). 
(403)  "Aus  dem  Babylonischen  Rechtsleben"  (with  Peiser)  (Leipzig, 

1890-91-94-98,  pp.  272). 

(408)  "Hammurabis  Gesetz"  (with  Peiser-Ungnad,  1904-1909). 
(424)    "Rechtshistorische    und    rechtsvergleichende    Forschungen" 

(1882,  pp.  100). 

ESTHETICS 

(447)  "Aus  dem  Lande  der  Kunst"  (Wiirzburg,  1882,  pp.  86). 

(448)  "Asthetische  Streifereien"  (Mannheim,  1889,  pp.  70). 

(454)    "Vom    Lebenspfad"    (collected   essays)    (Mannheim,    1902, 

pp.  212). 
(470)  "Shakespeare  vor  dem  Forum  der  Jurisprudenz"  (Wiirzburg, 

1884,  pp.  300). 

POETRY 
(498)  "Lyrische  Gedichte  und  Balladen"  (Mannheim,  1892,  pp. 

362). 

(500)  "Der  Leibestod"  (Mannheim,  1893,  pp.  112). 
(505)  "Neue  Dichtungen"  (Mannheim,  1895,  pp.  263). 

(509)  "Dantes  heilige  Reise"   (3  vols.  Koln.,  1901-2-3,  pp.  224, 
234,  222). 

(510)  "Aus  Petrarcas  Sonettenschatz"  (Berlin,  1902,  pp.  115). 

Among  numerous  later  works  of  Kohler  there  can 
only  be  noted  here  two  works  in  the  field  of  Philosophy  of 
Law  —  his  "Moderne  Rechtsprobleme"  (1907),  and  the 
"Lehrbuch  der  Rechtsphilosophie"  (Berlin,  1909),  which 
is  the  work  now  rendered  into  English. 

Kohler's  style  is  affirmative  and  belligerent.  He  is 
never  in  doubt  as  to  his  own  position,  and  does  not  hesi- 
tate to  make  that  position  clear.  It  requires  a  virile 
disposition  for  such  capacity  as  he  has  exhibited,  and 


EDITORIAL  PREFACE  xxi 

this  energy  frequently  is  shown  in  combating  opposition. 
As  an  antagonist,  Kohler  fights  with  deadly  weapons. 
The  late  Professor  James  could  only  think  of  an  idealistic 
philosophy  as  a  tender-minded  way  of  thinking;  but, 
surely,  he  would  have  found  neo-Hegelianism  entirely 
too  realistic  to  square  with  his  characterization. 

The  elemental  savagery  of  German  criticism  has 
probably  struck  every  reader  who  has  looked  into  Prus- 
sian reviews.  The  summary  way  in  which  antagonists 
are  disposed  of  will,  from  time  to  time,  be  disclosed  in 
the  ensuing  text,  even  as  the  lethal  blows  are  softened 
by  the  shock-absorbing  devices  of  the  English  language 
in  the  hands  of  the  translator.  The  German  lan- 
guage is  blunt  and  plain ;  it  does  not  cut,  like  the  French, 
with  a  nice  precision,  leaving  a  neatly  dissected  corpse, 
but  annihilates;  and  the  militant  temperament  of  the 
imperial  capital  allows  no  opposition  —  not  even  on  the 
quagmires  of  metaphysics. 

As  Kohler  is  neo-Romantic  in  art,  it  would  be  strange 
to  find  him  holding  to  a  classical  dialectic  in  Philosophy 
of  Law.  This  anomaly  does  not  exist,  and  Kohler 
belongs  to  the  same  school  as  Berolzheimer,  author  of 
"The  World's  Legal  Philosophies"  in  this  series,  and 
Lasson.the  genial  thinker  whose  good-natured  apprecia- 
tion appears  as  a  part  of  this  volume.  Kohler's  philo- 
sophical position  is  not  found  completely  stated  in  its 
outlines  and  implications  in  this  or  any  other  particular 
contribution;  and,  perhaps,  even  if  all  his  writings  in 
this  sphere  were  marshalled  and  collated,  there  might 
still  appear  to  be  many  vacancies  and  obscurities  to 
perplex  a  technically  trained  philosopher.  Especially 
would  there  be  wanting  anything  like  a  self-contained 
metaphysical  system;  but  it  must  be  remembered  that 
Kohler  has  never  at  any  time  set  himself  the  purpose  of 
writing  a  substitute  for  Hegel's  "Phenomenology  of 


xxii  EDITORIAL  PREFACE 

Spirit";  and  that  his  system,  so  far  as  it  is  a  system, 
finds  its  fundamental  premises  in  the  Hegelian  doctrine 
with  the  elimination  of  all  formal  elements. 

Nothing  more  significant  has  ever  occurred  in  the  his- 
tory of  Philosophy  of  Law  than  that  its  text-book  should 
be  written  by  a  man  who  possesses  not  only  wide  and 
deep  knowledge  of  philosophical  speculation,  but  who 
combines  metaphysical  learning  with  remarkable  mas- 
tery of  the  law  in  its  historical  and  positive  aspects. 
The  great  names  in  Philosophy  of  Law  heretofore  have 
represented  many  kinds  of  scholarship  except  legal 
scholarship;  and  much  of  the  distrust  which  has  pre- 
vailed to  make  the  way  of  this  study  difficult  is  un- 
doubtedly explainable  on  this  ground:  for  what  has  a 
jurist  to  learn  about  the  law  from  a  philosopher? 

Whether  this  work  successfully  builds  up  its  thesis  for 
the  reality  of  a  metaphysic  of  the  law  is  a  question  upon 
which  much  can  and  probably  will  be  said ;  but  that  as  a 
unified  elaboration  of  the  entire  material  of  legal  history, 
it  will  make  conspicuous  the  principle  of  the  relativity 
of  the  law,  and  the  wonderful  teleology  of  evolution,  will 
be  made  manifest  to  any  unprejudiced  reader  whatever 
his  other  conclusions.  It  cannot  be  expected,  however, 
that  the  forces  of  legal  nihilism  —  those  who  deny  every- 
thing but  the  coarsest  interpretation  of  the  conflicts  of 
social  life  —  will  capitulate  as  an  army,  to  the  idealistic 
groundwork  of  a  system  which  must  admit  brutality, 
egoism,  and  evil.  The  perspective  of  life  is  too  exten- 
sive, and  the  forces  of  historical  change  are  too  subtle  to 
be  apprehended  by  those  who  see  only  the  struggle  for 
the  demands  of  a  barren  material  existence. 

It  will  not  be  necessary  here  to  attempt  a  critical 
examination  of  Kohler's  position  in  Philosophy  of  Law 
in  view  of  the  able  discussion  of  this  matter  elsewhere  in 
this  volume.  Attention  should,  however,  be  called  to 


EDITORIAL   PREFACE  xxiii 

Berolzheimer's  "The  World's  Legal  Philosophies"  (Mrs. 
Jastrow's  translation,  Vol.  II  of  this  series,  particularly 
pp.  422-427).  It  only  remains  to  enumerate  some  addi- 
tional facts  to  complete  this  biographical  note. 

Josef  Kohler  was  born  March  9,  1849,  at  Offenburg, 
Germany.  He  received  his  education  at  the  gymnasia 
of  Offenburg  and  Rastatt,  and  the  universities  of  Frei- 
burg and  Heidelberg.  He  became  "Amtsrichter"  at 
Mannheim  in  1874;  later  "Assessor"  and  "Rat"  of  the 
District  Court  at  Mannheim.  In  1878  he  became  pro- 
fessor of  law  at  Wiirzburg;  and  in  1888  professor  of  law 
at  the  University  of  Berlin,  which  latter  appointment  he 
still  holds. 

Everything  that  Kohler  has  attempted  is  characterized 
by  breadth  of  interest  and  intensity  of  production.  This 
is  shown  not  only  in  his  own  writings,  but  equally  in 
co-operative  labors  in  which  he  has  vastly  stimulated 
learned  efforts  of  others.  What  Kohler  has  done  in  the 
direction  of  influencing  others  would  more  than  suffice 
to  mark  him  as  a  great  dynamic  personality.  We  may 
instance,  as  examples  of  this,  the  following  propulsive 
undertakings:  in  1888  he  became  editor  (jointly  with 
Viktor  Ring)  of  "Archiv  fur  biirgerliches  Recht";  in 
1903  he  became  editor  of  "Berliner  Juristischen  Ber- 
trage" ;  for  many  years  he  has  had  editorial  management 
of  that  great  repository  of  historical  information,  "Zeit- 
schrift  fur  Vergleichende  Rechtswissenschaf t" ;  he  is 
founder  of  "Zeitschrift  fur  Volkerrecht"  (now  in  the 
7th  voume);  publisher  (jointly  with  Berolzheimer)  of 
"Archiv  fur  Rechts-  und  Wirtschaftsphilosophie,"  the 
leading  journal  of  Philosophy  of  Law  (now  in  the  7th 
volume);  and  publisher  of  "Archiv  fur  Strafrecht  und 
Strafprozess."  That  these  are  piobably  not  merely 
honorary  positions  may  be  quickly  ascertained  on  look- 
ing into  these  publications;  thus,  one  finds,  to  take  for 


xxiv  EDITORIAL  PREFACE 

example,  the  last  journal,  not  only  that  Kohler  is  a 
constant  contributor  of  original  articles  dealing  with  the 
most  technical  aspects  of  criminal  law,  but  that  appa- 
rently, as  to  that  journal,  he  finds  time  somehow  to 
read  the  great  number  of  publications  representing  every 
language  which  come  into  the  editorial  office  for  review. 
In  a  recent  number  of  that  journal,  it  appears  that  a 
dozen  different  book  reviews  at  one  time  do  not  exceed 
his  capacity.  It  is  true  that  these  reviews  are  very 
much  condensed;  but  that  does  not  explain  away  the 
fact  of  Kohler's  breadth  of  reading.  It  indicates  only 
that  he  has  surveyed  the  law  so  widely  and  so  thoroughly, 
that  he  is  able  to  hit  upon  the  central  thought  of  a  work 
under  consideration  with  a  quick  intelligence,  and  an 
authoritative  estimate  of  its  scientific  value. 

External  matters  such  as  titles,  and  connections  with 
learned  societies,  we  here  set  down  last  and  of  least 
importance,  in  dealing  with  an  author  to  whose  merit 
little  if  anything  can  be  added  from  without.  Kohler 
is  a  Privy  Councillor  of  Justice;  honorary  president  of 
the  International  Association  of  Legal  and  Economic 
Philosophy;  member  of  the  Royal  Institute  "voor  de 
Taal-Land-  en  Volkenkunde  van  Nederlandsch  Indie"; 
member  of  "Societe  Academique  Indo-Chinoise"  of 
Paris;  member  of  "Societ6  de  Legislation  Compared"  of 
Paris;  member  of  the  "Genootschap  van  Kunsten  en 
Wetenschappen"  of  Batavia;  member  of  the  "Academy 
of  Sciences  of  the  Institute  of  Bologna" ;  honorary  mem- 
ber of  "Institute  di  Storia  del  Diritto  Romano"  of  the 
University  of  Catania;  honorary  member  of  the  "Greek 
Philological  Society"  at  Constantinople;  member  of 
"Gesellschaft  fiir  Rheinische  Geschichtskunde"  at  Koln; 
and  member  of  the  "Societies  of  Arts  and  Sciences" 
at  Utrecht.  The  University  of  Chicago,  a  number  of 
years  ago,  in  recognition  of  Kohler's  juristic  labors,  con- 
ferred on  him  the  degree  of  LL.D. 


INTRODUCTION   TO   THE  TRANSLATED 

VOLUME 

BY  ORRIN  N.  CARTER1 


The  tendency  is  growing  in  recent  years  to  question 
the  soundness  of  every  branch  of  substantive  and  adjec- 
tive law.  Whether  this  tendency  will  be  beneficial  or 
otherwise  will  depend  largely  upon  the  action  of  the 
leaders  in  the  legal  profession.  Doubtless  the  teachers 
and  writers  upon  law  will  have  great  influence.  It  is 
especially  fortunate  at  this  time  that  through  this  series 
the  great  works  upon  modern  legal  philosophy  are  being 
made  easily  accessible  to  all  interested  in  the  subject. 

No  writer  of  the  last  century  has  written  more  exten- 
sively than  the  author  of  this  book.  It  may  well  be 
doubted  whether  any  writer  in  modern  times  has  had  as 
wide  a  knowledge  or  as  sure  a  grasp  of  the  subject  here 
considered.  He  possesses  not  only  remarkable  learning 
but  extraordinary  intellectual  powers  which  peculiarly 
fit  him  for  a  work  of  this  character.  No  attempt  will 
be  made  to  refer  to  his  other  legal  works  or  to  his  teach- 
ing and  writings  in  other  departments  of  literature,  that 
having  been  so  fully  and  ably  covered  in  the  editorial 
preface.  Perhaps  this  introduction  will  be  as  helpful, 
not  only  to  the  casual  reader  but  to  the  student  of  this 
subject,  if  the  writer  briefly  calls  attention  to  what  he 
considers  some  of  the  most  striking  thoughts  of  the  work. 

"The  philosophy  of  law,"  Kohler  says,  "is  a  branch  of  ] 
philosophy,  of  that  philosophy  which  deals  with  man  / 
and  his  culture."2  "The  essence  of  culture"  he  states 

i  Justice  of  the  Supreme  Court  of  the  State  of  Illinois, 
s  Note  4,  Appendix,  329. 


xxvi  INTRODUCTION 

/"in  the  sense  of  Philosophy  of  Law,  is  the  greatest 
possible  development  of  human  knowledge,  and  the 
greatest  possible  development  of  human  control  over 
nature."  In  another  work  he  gives  this  definition: 
"Culture  is  the  development  of  the  powers  residing  in 
man  to  a  form  expressing  the  destiny  of  man."  3  In  this 
book  he  states  "The  totality  of  humanity's  achievements 
is  called  culture ;  and  in  this  culture,  it  is  the  part  of  the 
law  to  promote  and  to  vitalize."  He  uses  the  word 
"culture"  in  the  German  sense.  In  that  sense  "Culture 
is  the  control  of  nature  by  science  and  art."  4  The  law 
is  not  only  the  end  but  the  means  of  this  culture.  The 
great  German  philosopher,  Hegel,  is  his  model.  The 
reason  of  Hegel  is  converted  by  Kohler  in  his  treatment 
of  the  law  into  culture.  I  am  disposed  to  agree  with 
one  of  his  reviewers  that  his  "theory  of  law  is  more  fully 
developed  than  his  philosophical  system."5  Evolution, 
with  him,  is  the  controlling  factor  in  the  law.  Hence 
there  is  no  such  thing  as  eternal  law.  The  law  which 
is  suitable  for  one  period  is  not  so  for  another.  He 
urges  that  we  should  strive  to  provide  every  culture 
with  its  corresponding  system  of  law,  because  there  is 
'  no  fixed  permanent  law,  suitable  to  all  times.  He 
strongly  combats  the  idea  of  natural  law.  With  him  all 
law  is  positive,  which  manifests  itself  in  every  people 
and  in  every  age.  His  dominant  thought  is  evolution  and 
culture,  or  as  another  has  said  "cultural  progression." 
However  much  anyone  may  disagree  with  his  proposition 
that  there  is  no  such  thing  as  natural  justice  or  law,  — 
the  same  in  all  centuries  and  with  every  people,  —  one 
cannot  but  feel  the  force  of  his  argument  that  history 
shows  that  law  is  influenced  largely  not  only  by  the 

'"Moderne  Rechtsprobleme,"  Sec.  1. 
« Small,  "General  Sociology,"  p.  58. 
'Appendix,  347. 


CARTER  xxvit 

thought  or  spirit  of  the  age  —  what  Kohler  calls  "psychic  | 
life"  but  also  by  external  circumstances;  that  its  charac-  } 
ter  in  a  country  where  people  live  on  the  plains  may  be 
different  in  many  particulars  from  what  it  is  among 
people  who  live  in  the  mountains  or  near  the  sea ;  that  a 
country  fitted  for  commerce  needs,  and  necessarily  has, 
laws  differing  materially  from  one  that  is  purely  agri- 
cultural. 

A  citizen  of  America  will  find  it  difficult  to  accept 
Kohler's  teachings  that  at  certain  stages  of  human  cul- 
ture, human  slavery  is  just.  He  argues  that  slavery  is 
not  evidence  that  progress  is  lacking,  but  rather  shows 
considerable  economic  progress;  that  in  periods  in 
which  there  is  no  progress  no  need  of  slaves  is  felt;  that 
slavery  is  a  means  of  obtaining  a  division  of  labor  on  a 
large  scale.  He  holds  that  no  one  who  looks  at  the 
matter  entirely  from  the  standpoint  of  human  rights 
will  be  able  to  understand  the  historical  development 
of  slavery,  for,  he  says  "Human  rights  are  not  advan- 
tageous to  every  development."  The  reading  of  his 
discussion  on  this  subject  will  cause  some  of  us  to  wonder 
less  that  the  institution  of  slavery  was  so  strongly  advo- 
cated in  portions  of  our  country  before  the  civil  war.  In 
'connection  with  his  views  on  slavery  it  is  appropriate 
to  state  that  his  juridical  ideal  is  what  some  of  his 
critics  have  designated  "as  an  Hegelian  aristocracy ;"  V 
that  law  must  be  permanently  ideal  and  educative,  but 
cannot  draw  its  inspiration  from  the  masses. 

One  of  the  most  satisfactory  parts  of  the  book  is  his 
discussion  as  to  the  purpose  of  the  law  to  neutralize  the 
consequences  of  accident  or  chance.  While  we  cannot 
remove  chance  from  the  world,  he  insists  that  we  can 
try  to  render  it  less  harmful ;  that  it  is  a  foreign  element 
in  evolution  and  we  should  so  far  as  possible  remove  it 
where  it  tends  to  injure  us.  We  do  this  by  insurance 


xxviii  INTRODUCTION 

agreements  of  all  kinds,  thus  distributing  over  society 
at  large  the  dangers  that  meet  the  individual.  This 
doctrine  of  equalization  by  the  removal  of  chance  he 
claims  is  very  important  in  the  case  where  one  has  injured 
another  by  wrong  doing.  The  legal  necessity  there 
requires  the  transferring  of  the  damage  from  the  person 
who  has  been  injured  to  the  person  who  has  caused  the 
injury.  He  illustrates  this  principle  in  the  law  of  barter 
when  he  states  that  "The  backbone  of  barter  is  the 
equalization  of  value";  that  one  of  the  principal  means 
of  eliminating  chance  was  the  introduction  of  money, 
so  that  each  shall  have  a  standard  of  value  in  barter  and 
trade.  The  payment  of  interest  for  the  use  of  money  or 
property  he  classifies  also  in  the  philosophy  of  the  law  as 
belonging  to  the  same  general  principle  whereby  the  law 
limits  the  inequalities  of  chance.  "Time"  in  his  evolu- 
tion "is  the  stepmother  of  humanity."  It  suppresses 
values  that  deserve  full  recognition.  He  insists  that 
nations  that  discount  the  future  are  optimistic,  filled 
with  the  joy  of  production;  that  chance  is  an  immense 
factor  in  the  future ;  that  the  oriental  nations  heretofore 
by  their  laws  have  not  guarded  against  chance  and  there- 
fore they  have  prohibited  the  taking  of  interest  and 
transactions  involving  future  things.  I  am  disposed  to 
agree  largely  with  most  of  his  conclusions  in  his  wonder- 
fully interesting  discussion  of  the  history  and  philosophy 
of  this  branch  of  the  law. 

His  discussion  as  to  the  rights  and  duties  of  the  indi- 
vidual and  society  under  the  head  of  "Collectivity  and 
Individualization"  is  well  worth  reading.  He  argues  that 
there  must  be  a  development  of  the  individual,  with  the 
highest  possible  training  of  the  mental  powers,  but  that 
humanity  can  only  operate  collectively  and  that  there 
must  be  a  constant  alternation  between  collectivism  and 
individualism  in  order  to  make  possible  the  highest 


CARTER  xxix 

achievements  by  humanity;  that  history  shows  a  con- 
stant tendency  towards  individualization  and  again  an 
increasing  pressure  towards  collectivism.  He  illustrates 
these  principles  by  a  discussion  of  the  law  of  inheritance. 
His  argument  is  that  on  the  one  hand  the  individual 
demands  consideration  the  same  as  every  other  individ- 
ual, while  on  the  other  hand  social  life  often  demands  that 
one  or  more  individuals  be  forced  into  the  background. 
The  conclusion  seems  to  follow  from  this  argument  that 
he  would  believe  in  the  old  English  law  of  primogeniture. 
He  says  that  the  philosophical  significance  of  the  right 
of  the  individual  to  make  a  will  lies  in  the  increased  im- 
portance of  the  individual  as  opposed  to  that  of  the 
family.  He  states  in  some  detail  the  advantages  and 
disadvantages  of  allowing  a  person  to  deal  with  his 
property  as  he  desires,  insisting  that  the  interests  of 
society  demand  that  the  individual  should  not  be  per- 
mitted to  make  contracts  that  will  bind  for  any  great 
length  of  time  those  that  come  after.  If  the  laws  against 
perpetuities  have  any  philosophical  basis,  it  is  found  in 
this  argument.  In  one  place  he  sums  up  his  argument 
on  this  question  with  the  statement  that  "universal 
history  often  requires  the  individual  to  be  thus  sacrificed ; 
the  iron  tread  of  progress  tramples  thousands  under  foot." 
Might  it  not  be  more  accurate  to  say  that  this  occurs/ 
in  spite,  not  because  of,  progress? 

Those  who  are  studying  the  problems  as  to  trusts  will 
find  in  his  discussion  on  this  question  much  food  for 
thought.  While  he  concedes  that  the  right  of  contract 
may  be  abused  in  the  formation  of  associations  or  cor- 
porations that  control  commerce,  turning  it  out  of  its 
natural  channel,  he  argues  that  little  can  be  accomplished 
by  direct  coercive  measures;  that  the  most  efficient 
means  of  remedying  the  evils  is  to  permit  the  individual 
to  withdraw  from  the  combination  at  any  time,  and  then 


XXX 


INTRODUCTION 


the  system  will  crumble  away  of  itself;  that  if  the 
attempt  is  made  to  perpetuate  the  system  in  the  form  of 
trusts,  individual  management  being  embraced  in  one 
great  whole,  individual  interests  will  again  lead  to  the 
collapse  of  such  artificial  formations.  "How  impolitic" 
he  exclaims  "are  all  laws  that  proceed  only  by  pro- 
hibitions! We  must  fight  human  nature  with  itself!" 
He  insists,  however,  that  partnerships,  associations  and 
corporations  should  not  be  permitted  to  be  established 
for  too  long  a  time ;  that  in  order  to  prevent  abuses  there 
should  be  public  supervision. 

Space  will  not  permit  dwelling  on  his  discussion  on  the 
rights  of  personality,  the  law  of  things,  the  law  of  obliga- 
tions, family  law,  gifts,  his  views  on  the  philosophy  of 
law  as  to  secrecy  and  publicity  in  business  affairs,  his 
conclusions  on  the  wisdom  of  the  division  of  govern- 
mental powers  into  executive,  legislative,  and  judicial, 
or  other  subjects  which  are  treated  by  our  author  most 
philosophically  and  with  keen  analytical  power.  One  or 
two  other  topics,  however,  are  of  such  importance  at 
the  present  time,  that  I  cannot  forego  referring  briefly 
to  his  views  thereon. 

In  these  days,  when  so  many  are  of  the  opinion  that 
our  criminal  law  and  procedure  has  been  outgrown,  we 
will  be  well  repaid  by  a  thoughtful  perusal  of  his  views  on 
that  subject.  He  comments  on  the  fact  that  in  recent 
years  it  has  been  believed  possible  to  enforce  criminal 
law  in  such  a  manner  as  to  discard  all  idea  of  justice; 
that  this  theory  is  supported  by  an  argument  that  the 
offender  is  only  a  creature  of  nature,  and  is  compelled  to 
act  according  to  his  natural  instincts,  therefore  punish- 
ment is  absurd,  mediaeval  and  contrary  to  the  spirit  of 
rnodern  times;  that  the  individual  is  the  result  of  his 
environment.  Our  author  has  no  patience  with  this 
view  of  criminal  law  or  criminal  justice.  He  insists 


CARTER  xxxi 

that  such  a  law  is  "no  longer  criminal  law  at  all;"  that 
to  follow  such  a  line  of  argument  would  be  to  abolish 
criminal  law  rather  than  develop  it;  that  instead  of 
justice  we  would  have  merely  its  empty  form.  He  lays 
down  the  principle  that  the  progress  of  criminal  law 
should  be  (1)  to  distinguish  and  separate  sharply, 
righteous  punishment  from  all  the  other  consequences 
of  the  evil  deed ;  (2)  to  take  equal  care  that  the  misdeed 
is  expiated  by  the  proper  punishment,  and  with  this 
atonement  other  corrective  measures  are  employed. 
Punishment,  he  says,  must  conform  to  humanity's  need 
of  punishment. 

His  treatment  of  the  value  of  human  testimony  and 
the  credence  to  be  given  to  it  is  most  striking.  He  holds 
that  the  means  of  proof  must  not  be  overestimated,  and 
calls  attention  to  the  fact  that  perceptions  often  produce 
false  impressions ;  that  testimony  is  the  mere  raw  material 
out  of  which  the  truth  must  be  constructed. 

In  his  discussion  as  to  whether  justice  is  realized  under 
the  law  his  conclusion  is  that  legal  procedure  as  a  realiza- 
tion of  justice  has  its  disadvantages  as  well  as  advan- 
tages, the  chief  disadvantage  being  the  unavoidable 
delay  in  obtaining  justice,  which  often  is  almost  equiva- 
lent to  a  denial  of  it.  He  recognizes  that  in  modern  law 
there  is  a  strong  effort  now  being  made  to  reconcile  the 
apparently  irreconcilable  contradiction  of  the  swift 
realization  of  justice,  with  a  just  decision  after  a  thorough 
examination  of  the  questions  in  controversy.  He  states 
that  among  the  attempts  being  made  to  equalize  delay 
is  that  of  giving  the  successful  party  interest  on  the 
amount  of  the  judgment  from  the  commencement  of 
the  legal  proceedings.  He  insists  that  the  law  must  be 
elastic  enough  to  meet  the  just  requirements  of  the 
individual  case,  while  avoiding  a  conflict  with  the  tech- 
nically logical  results  under  the  general  rules  of  law; 


xxxii  INTRODUCTION 

that  this  is  not  always  feasible;  that  adaptable  supple- 
ness must  sometimes  give  way  to  a  certain  coarsening, 
in  the  interest  of  greater  facility  in  handling.  Con- 
sequently the  law  should  be  construed,  if  possible,  so 
that  hundreds  of  disputes  can  be  avoided,  and  a 
system  of  law  that  inclines  in  that  direction  is  better 
than  a  nicely  exact  system  that  constantly  involves  the 
people  in  disputes.  A  similar  line  of  argument  is  fol- 
lowed by  a  great  English  constitutional  writer  who 
asserts  that  the  legal  right  of  every  person  is  conditioned 
on  the  welfare  of  society;  that  in  practical  matters 
there  are  conflicting  rights,  that  the  important  feature 
of  any  law  is  the  adjustment  of  such  rights,  and  the  best 
that  can  frequently  be  done  is  to  effect  a  "rough  com- 
promise between  them."  6 

Kohler  is  a  leader  in  the  modern  school  of  philosophical 
writers  who  are  attempting  to  enforce  the  teachings  of 
Hegel.  He  is  a  pioneer  in  his  writings  on  comparative 
legal  history  and  philosophy.7  Even  though  we  may  not 
think  his  doctrines  will  survive  through  future  centuries, 
they  will  assuredly  assist  every  student  of  comparative 
philosophy  not  only  in  his  studies  in  the  history  of  the 
subject,  but  in  reaching  correct  conclusions  as  to  the 
objects  and  purposes  of  law.  Contrary  to  the  deductions 
of  the  early  Greek  philosophers,  who  considered  the  ruler 
more  important  than  the  law,  Kohler  pins  his  faith  on 
the  law  rather  than  the  executive,  the  law-maker  or 
the  judge.  In  this  he  is  in  accord  with  the  teachings  of 
our  fathers,  that  ours  —  as  stated  in  many  of  our  con- 
stitutions and  court  decisions  —  is  a  government  of  laws, 
not  men.  He  teaches  that  the  standards  in  the  law 
should  be  ethical  rather  than  material.  He  sums  up 
this  doctrine  in  the  closing  sentence  of  his  preface  to 

*  Dicey,  "Law  and  Opinion  in  England",  Appendix,"  466. 
i  Roscoe  Pound,  25  Harvard  Law  Review,  p.  155. 


CARTER  xxxiii 

this  volume:    "Materialism  is  dead;  the  philosophy  of 
Spirit  still  lives." 

To  any  student  of  the  law  this  book  is  most  thought- 
provoking.  It  is  one  of  the  works  from  which  the  reader 
will  be  benefited  even  if  he  follows  Bacon's  admonition 
and  only  "tastes  it"  and  it  also  falls  within  the  class  of 
those  few  "to  be  chewed  and  digested."  The  so-called 
practical  thinkers  of  today  may  believe  that  he  deals 
too  much  in  metaphysics ;  that  his  conclusions  are  based 
on  his  theories  rather  than  upon  practical  experience; 
that  in  this  regard  he  can  be  fairly  criticised  the  same  as 
his  great  model,  Hegel,  of  whom  it  is  told  that  coming 
from  his  study  one  day  in  1807  just  after  finishing  his 
most  profound  work  on  the  philosophy  of  history,  he 
was  much  surprised  to  find  French  troops  on  the  streets 
of  his  own  city,  Jena ;  so  far  forgetting  everything  else 
in  his  study  of  the  science  of  government  that  he  was 
not  aware  that  a  great  battle  had  been  lost  by  his  country, 
and  that  its  government  had  been  practically  destroyed 
by  Napoleon.  We  are  not  prepared,  however,  to  agree 
fully  with  those  who  thus  criticise.  In  the  long  run, 
the  ideal  is  often  the  practical.  That  is  a  profound 
philosophy  which  holds  that  nothing  is  ever  settled 
until  it  is  settled  right.  The  great  problems  in  all 
statesmanship  are  never  settled  right  until  the  efforts 
of  the  practical  man  of  affairs  and  the  man  of  ideals 
are  united  in  one  common  purpose. 


INTRODUCTION  TO  THE  TRANSLATED 
VOLUME 

BY  WILLIAM  CALDWELL* 


No  volume  in  this  series  could  better  realize  the 
desires  and  purposes  of  the  Editorial  Committee  of  the 
Association  of  American  Law  Schools  than  this  work 
of  Professor  Kohler  upon  the  Philosophy  of  Law.  And 
to  no  volume  in  any  modern  series  could  a  more  deserved 
welcome  be  given  by  the  friends  of  ideas,  in  the  larger 
and  the  effective  sense  of  this  term. 

It  is  typical  in  the  best  sense  of  the  spirit  of  the 
reconstructive  nationalism  that  is  at  work  in  the  leading 
countries  of  the  world  to-day,  and  that  is  the  surest  and 
the  sanest  step  to  the  internationalism ,  of  the  future. 

The  following  are  the  main  points  of  view  from  which, 
as  the  occupant  of  a  more  or  less  representative,  official, 
position,  I  shall  attempt  to  substantiate  the  foregoing 
statements:  (1)  the  distinctive  characteristics  of  Kohler's 
Philosophy  of  Law  as  a  book  in  this  Legal  Philosophy 
Series ;  (2)  its  chief  characteristics  from  the  philosophical 
point  of  view;  (3)  its  general  modernity  in  the  matter 
of  its  spirit,  its  scholarship,  and  its  affiliations;  (4)  its 
peculiar  significance  and  utility  to  the  life  and  thought, 
and  the  general  political  and  social  atmosphere,  of  the 
United  States  of  America  at  the  present  time. 

I .  Josef  Kohler  is  of  course  already  known  to  students 
of  the  history  of  the  philosophy  of  the  nineteenth  cen- 
tury as,  along  with  men  like  Trendelenburg,  Ahrens, 
Schuppe,  Lasson,  Ihering,"a  competent  representative 

i  Sc.  D.  (Edinburgh) ;  Professor  of  Logic  and  Moral  Philosophy  in 
McGill  University,  Montreal;  author  of  "The  Philosophy  of  Schopen- 
hauer" (1896),  "Pragmatism  and  Idealism"  (1913),  etc.,  etc. 


xxxvi  INTRODUCTION 

of  the  spirit  and  of  the  traditions  of  philosophy  in  the 
region  of  the  philosophy  of  jurisprudence.  It  is  also 
known  that  his  sympathies,  so  far  as  a  general  philosophy 
of  things  is  concerned,  are  in  the  main  with  the  teaching 
of  Hegel,  the  author  of  the  most  comprehensive  and 
pretentious  system  of  Idealism  that  has  perhaps  ever 
been  invented  by  the  mind  of  man.  I  shall  immediately 
speak  of  the  matter  of  Kohler's  relation  to  Hegel,  and 
of  the  relative  independence  of  his  thought  that  warrant 
us  in  thinking  of  him  as  a  Neo-Hegelian,  although  in  a 
different  sense  of  this  term  than  the  one  to  which  we 
are  committed  when  we  speak  of  Anglo-American  Neo- 
Hegelianism,  from  the  Cairds  and  Green  to  Bradley 
and  Royce.  The  fact  however  that  his  thought  as  a 
philosopher,  and  as  a  great  legal  thinker,  is  rooted  and 
grounded  in  the  great  principles  of  Idealism  as  represented 
not  only  by  Hegel,  but  by  Plato  and  Aristotle  and  others, 
when  taken  along  with  the  officially  recognized  esti- 
mates of  his  services  in  the  field  of  positive  law,  is  of 
itself  enough  to  guarantee  the  wisdom  of  this  Com- 
mittee in  placing  the  present  work  before  their  country- 
men, as  at  least  representative  of  the  fundamental 
thought,  and  the  scholarship,  and  the  expert  competence, 
that  must  characterize  the  work  of  the  legal  thinkers 
and  teachers  of  the  future  in  America. 

As  one,  who,  although  a  layman  so  far  as  the  techni- 
calities of  the  law  are  concerned,  has  at  least  a  working 
knowledge  of  Law  as  a  subject  to  be  intimately  asso- 
ciated with  the  studies  of  the  Liberal  Arts  course  in 
the  modern  university,  I  desire  to  record  here  that 
the  first  thing  that  impressed  me  about  this  work  of 
Kohler's  was  his  obvious,  easy,  familiarity  with  the  entire 
range  of  philosophical  speculation  about  human  knowl- 
edge and  about  human  practice.  And  then  after  this, 
his  consummate  ability  in  thinking  out  the  various  divi- 


CALDWELL  xxxvii 

sions  and  subdivisions,  and  the  various  specific  topics 
of  law,  in  the  terms  not  only  of  "first  principles,"  but 
of  the  special  considerations  of  the  complex  economic 
and  social  life  of  our  times. 

In  comprehensiveness  of  spirit,  therefore,  and  in 
methodological  exactitude,  and  in  the  matter  of  the 
mastery  of  the  minutest  detail  (without  which  no  one 
can  be  an  expert  in  anything)  this  work  on  the  Philosophy 
of  Law  has  an  undoubtedly  educative  and  representa- 
tive place  in  the  Legal  Philosophy  Series.  And  that 
this  is  the  case  will  be  discovered  by  any  one  who  will 
read,  without  presuppositions,  any  of  its  sections  upon 
any  particular  legal  topic,  and  then  some  of  the  more 
general  pages  of  Kohler  upon  such  a  broad  topic  as  the 
legal  Philosophy  of  the  State,  or  the  Philosophy  of  Law 
in  particular,  in  the  opening  pages. 

If  a  citation  or  two  be  in  order  here,  by  way  of  allow- 
ing this  remarkable  production  to  speak  of  its  own 
spirit  and  its  own  determinative  point  of  view,  perhaps 
we  may  direct  the  attention  of  the  reader  to  the  follow- 
ing: (1)  "Law  is  the  standard  of  conduct  which  in 
consequence  of  the  inner  impulse  that  urges  men  toward 
a  reasonable  form  of  life,  emanates  from  the  whole, 
and  is  forced  upon  the  individual.  It  is  distinguished 
from  morals,  customs,  and  religion  as  soon  as  the  point 
is  reached  at  which  compulsory  standards  are  separated 
from  the  commands  that  involve  social  amenity,  etc." 
[Italics  mine.]  (2)  The  declaration  that  "he  who  is 
concerned  with  legislative  policy  has  already  half  entered 
the  domain  of  philosophy.'1  And  as  a  single  specific 
instance  of  the  detailed,  masterly,  and  modern  treat- 
ment of  special  topics  that  impresses  the  student  either 
of  logic  and  methodology,  or  of  matters  legal  and  politi- 
cal, I  would  name  the  sections  on  The  Law  of  Obliga- 
tions, or  the  sections  on  The  Law  of  Federated  States. 


xxxviii  INTRODUCTION 

In  either  case  the  reader  of  to-day  will  find  a  consummate 
and  orderly  treatment  of  all  the  appropriate  and  inci- 
dental topics,  and  in  the  former  case,  say,  an  illumina- 
tive and  socially  valuable  (legal)  discussion  of  such 
burning  questions  as  the  "contracts"  that  "oppress  the 
economically  weak,"  the  "associations"  that  "control 
commerce  and  turn  it  out  of  its  natural  channel,"  etc.,  etc. 
II.  The  work  shows  throughout  —  in  its  very  in- 
ception and  aim,  in  its  manner  and  style,  in  its  general 
conception  of  the  unity  of  knowledge  and  of  the 
purpose  of  the  life  of  humanity  —  the  influence  of  Hegel. 
And  it  shows  this  influence,  not  in  the  sense  of  an  ac- 
ceptance of  Hegel's  mistaken  "dialectic"  of  bare  concepts 
and  categories  as  the  last  word  of  human  wisdom,  but 
in  the  sense  of  an  acceptance  of  Hegel's  effort  as  a 
whole  as  the  last  great  expression  of  a  spiritual  view  of 
life  and  reality.  To  Kohler,  too,  Hegel  is  the  master 
worker  in  the  realm  of  mind,  or  spirit,  or  Sittlichkeit, 
the  thinker  to  whom  the  arrangement  and  conquest 
of  "material,"  of  difficulties,  and  prejudices,  and  com- 
plexities, is  the  peculiar  work  of  science  in  any  form. 
He  is,  therefore,  on  more  grounds  than  one,  quite  in 
line  with  the  recent  revival  (within  the  last  ten  years) 
of  interest,  in  Germany  and  Italy,  in  the  Hegelian 
philosophy,  after  the  long  reign  of  Neo-Kantianism  and 
the  mere,  formal,  theory  of  Knowledge,  with  the  general 
fresh  interest  in  Germany,  in  the  sciences  pertaining 
to  man  and  man's  ideals — reflected,  say,  in  the  two 
recent  philosophical  journals,  Die  Geisteswissenschaften 
and  Logos.  "Materialism  is  dead,"  proclaims  Kohler  em- 
phatically in  his  earlier  pages  —  a  declaration  which 
leads  him  to  proclaim  the  "culture"  of  the  human  spirit, 
the  greatest  perfection  of  man  (as  an  individual  and  as  a 
member  of  society)  to  be  the  end  and  aim  of  law.  It  is 
the  same  conviction,  too,  along  with  the  philosophy 


CALDWELL  xxxix 

upon  which  it  reposes,  that  leads  him  at  once  to  the 
rejection  of  such  things  as  the  levelling  influence  of 
Socialism,  and  the  rejection,  also,  of  the  view  of  those 
who  forget  that  "technic"  and  "wealth,"  and  the  end- 
less advance  of  science  are,  after  all,  indispensable  steps 
in  the  evolution  of  the  higher  quality  of  human  nature 
and  of  social  justice. 

Unlike  many  Hegelians,  however,  Kohler  sees  the 
place  of  the  individual,  and  of  the  creative  activity  and 
the  economic  independence  of  the  individual,  in  culture 
and  progress.  He  has  words  of  praise  for  an  intuitive 
thinker  like  Nietzsche,  who  is  often  contemptuously 
dismissed  as  a  romanticist,  or  an  ego-maniac,  by 
rationalistic  and  positivistic  philosophers.  Nor  again 
is  philosophy  to  Kohler  a  mere  reflection  upon  the  past 
achievements  of  the  human  spirit,  or  upon  any  organized 
polity  [the  Prussian  States  to  Hegel]  as  the  incarnation 
of  the  World- Reason,  or  upon  the  closed  circle  of  the 
logic  of  a  perfectly  constructed  science.  It  is  not  true 
for  him  that:  "The  owl  of  Minerva  takes  its  flight  only 
when  the  shades  of  night  are  falling;"  for  he  is  a  pro- 
gressivist  and  futurist  in  all  respects.  The  world  is 
still  "young"  to  him,  and  we  are  only  in  the  morning 
of  the  work  of  the  conquest  by  man  of  his  environment 
and  of  himself.  He  is  as  idealistic  and  Utopian  about 
the  future  of  civilization  as  are  any  of  the  younger 
peoples  of  the  earth,  or  any  of  the  believers  in  the  future 
of  science  and  of  knowledge  and  of  effort.  "Humanity 
is  destined  to  a  deep  knowledge  of  the  world  and  of  the 
supramundane.  It  is  destined  to  form  and  to  rule, 
to  form  in  the  sphere  of  art,  to  rule  over  the  earth ;  and 
perhaps  by  virtue  of  technical  science,  over  other  fields 
of  the  universe." 

Some  of  the  additional  remarks  that  one  feels  inclined 
to  make  upon  this  matter  of  Kohler  and  his  Hegelian 


xl  INTRODUCTION 

Idealism  are  the  following.  He  has  so  assimilated  the 
spirit  and  the  manner  of  Hegel  that  his  book  is  a  veritable 
victory  of  mind  over  material  —  an  object  lesson  in 
methodology  and  completeness  to  all  future  students 
of  the  first  principles  of  law.  Many  of  his  sentences 
leave  upon  the  mind  the  same  sense  of  mastery,  and 
finality,  and  pregnant  wisdom,  that  we  catch  in  the 
"Logic"  or  the  "Phenomenology"  or  the  "Philosophy 
of  History,"  of  Hegel.  Take  this  sentence  for  example: 
"Material  culture  must  not  stray  into  paths  where  the 
mind  cannot  follow  it,  where  it  would  grow  unreason- 
able and  offend  against  the  principles  of  moral  life  in 
particular;  for  lack  of  morality  is  lack  of  reason." 

Kohler  thinks  too  in  the  terms  of  the  recognized 
categories  and  points  of  view  of  the  mental  and  moral 
sciences,  and  his  work  has,  in  an  eminent  sense,  the 
appearance  of  an  ordered  whole.  He  sees  clearly  the 
errors  of  the  Hegelian  "intellectualism,"  and  he  is  more 
truly  historical  and  positive  than  Hegel.  And  despite 
his  comparative  injustice  to  Kant  and  the  "Categorical 
Imperative,"  he  is  more  truly  ethical  than  Hegel.  In- 
deed the  remarkable  and  all -persuasive  ethical  character 
of  his  book  brings  his  face  closer  to  the  sage  of  Konigs- 
berg  than  does  the  letter  of  his  pages  about  the  mere 
"subject-object"  philosophy  mouthed  about  years  ago 
in  England  by  Coleridge.  And  lastly  —  and  this  is  an 
important  point  —  in  his  doctrine  of  the  relativity  of  all 
law,  of  its  necessary  change  and  adaptation  to  altering, 
and  to  new,  conditions,  he  breaks  definitely  with  the 
Procrustean  "absolutism"  of  some  German  and  some 
English  Neo-Hegelians,  and  comes  for  practical  and 
rational  purposes  into  a  desirable  relation  to  the  truth  of 
the  American  philosophy  of  Pragmatism,2  and  to  the 

*See  the  chapter  upon  "Pragmatism  as  Americanism"  in  the  writer's 
"Pragmatism  and  Idealism"  —  A.  &C.  Black,  London,  Macmillan,  N.  Y. 
(1913). 


CALDWELL  xli 

"experimentalism"  and  the  "philosophy  of  hypothesis."3 
of  modern  science  (Mach  and  Poincare  as  well  as  James 
and  Dewey). 

As  for  a  word  in  respect  of  the  comparison  of  this 
book  upon  the  Philosophy  of  Law  with  similar  works  in 
this  Legal  Philosophy  Series,  or  outside  it,  it  may  be 
said  that  Kohler,  although  just  as  ethical  in  his  ultimate 
attitude  as  Lasson,  is  more  intellectual  in  the  right  sense 
of  the  term,  standing  for  the  need  of  rational  compre- 
hension in  the  realm  of  ethical  reform,  for  the  idea  in 
fact  of  the  danger  of  ethical  and  social  reform  without 
comprehension  of  "end"  and  "purpose"  and  without 
system,  or  without  fundamental  truth  to  human  nature. 
His  work,  again,  is  a  valuable  supplement  to  the  fine  book 
of  Berolzheimer  in  the  series,  because  Berolzheimer  is  in 
the  main  historical  in  his  treatment,  while  he  [Kohler] 
is  systematic,  exemplifying  the  results  or  the  first 
principles,  of  all  legal  history.  It  is  hardly  to  be  wondered 
at  that  Kohler  as  a  finished  philosopher,  as  a  man  who 
(like  Aristotle)  always  seeks  for  the  meaning  of  "devel- 
opment" in  the  light  of  the  "end"  or  the  "purpose"  it 
seems  to  subserve,  should  think  himself  beyond  the 
mere  beginning  of  the  philosophy  of  law  represented  in 
the  otherwise  epoch-marking  work  of  Ihering. 

III.  The  thorough  "modernity"  of  the  work  of 
Kohler  (in  spirit,  scholarship,  and  affiliations)  is  amply 
exemplified  by  such  characteristics  as  the  following: 

(1)  the    up-to-date    character    of    his   psychology,    his 
treatment    of    the    "dispositions,"    impulses,    motives, 
intentions,    purposes,    the    "springs"   and   roots  of  the 
conduct  of  men  in  the  business  of  life  (matters  of  the 
utmost    importance    in    several    departments    of    law); 

(2)  the  thoroughly  sociological  character  of  all  his  work, 
along  with  the  fact  that  he  is  not  like  too  many  writers 

•  Sec  ibid,  chapter  III. 


xlii  INTRODUCTION 

of  the  day,  entirely  submerged  and  swamped  by  the 
sociological  trend  or  bias;  (3)  the  accompanying  recog- 
nition of  the  relation  of  the  legal  activities  of  men  to 
ethical,  and  religious,  traditions  and  beliefs  and  convic- 
tions; (4)  the  perfect  methodology  and  "logic"  of  his 
work,  to  which  reference  has  already  been  made ;  (5)  its 
opposition  to  the  mere  temporal  demands  of  the  "masses" ; 
and  (6)  lastly  (and  again)  its  progressive,  optimistic 
spirit,  its  faith  in  "achievement  and  aspiration"  and  in 
the  great  "cultural  mission  of  humanity." 

IV.  It  is  impossible,  I  think,  to  terminate  this  intro- 
duction without  referring  to  the  great  advantage  to  the 
United  States  of  all  the  far  reaching  knowledge  of  Ger- 
man and  continental  thought  represented  by  the  work  of 
all  these  translators  and  editors  in  this  Series.  As  I 
have  attempted  to  express  it  elsewhere,4  the  American 
scholar  of  to-day  in  the  best  universities  does  not  attempt 
the  work  of  exposition  or  creation  without  an  exhaustive 
and  codified  knowledge  of  what  has  been  done  in  his 
subject  in  other  countries.  The  very  greatest  things 
therefore,  in  the  way  of  constructive  work,  are  to  be 
expected  for  the  United  States  and  for  the  world  as  a 
result  of  all  this  preliminary  thought  and  research,  in 
respect  of  the  right  kind  of  foundation  and  beginning. 

«In  the  work  already  referred  to. 


AUTHOR'S  PREFACE 


My  effort,  here,  is  to  present,  as  a  system,  philosophical 
ideas  which  have  become  fixed  in  the  maturity  of  thirty 
years  of  study  of  ancient  and  modern  philosophies,  and 
an  investigation  of  the  laws  of  various  peoples.  I  do 
this  with  all  the  more  satisfaction,  for  the  reason  that 
the  lectures  at  this  University  on  Legal  Philosophy  and 
Comparative  Law  have  been  for  me  always  subjects  of 
special  interest  and  attachment. 

A  situation  that  thirty  years  ago  was  hardly  to  be 
anticipated  has  now  been  realized:  the  inclination  in 
favor  of  Legal  Philosophy  has  grown  anew;  and  the 
legal  philosophical  consciousness  of  our  jurists  has 
again  started  to  develop. 

That  a  pure  historicalness  boots  nothing,  that  the 
simple  cleaving  to  the  practical  debases  our  juristic 
thinking,  that  mere  construction  of  positive  law  does  not 
suffice  —  all  this  has  become  very  plain  in  the  last 
decade.  The  many  problems  of  legislative  policy  alone 
must  have  demonstrated  that  positivism  in  the  law  is 
without  value ;  and  he  who  is  concerned  with  legislative 
policy,  has  already  half  entered  the  domain  of  philoso- 
phy; for,  whoever  unites  legislative  policy  with  history 
is  already  aware  that  every  age  has  its  own  necessities 
to  which  its  mission  must  correspond.  Study  of  the 
legal  missions  of  the  various  periods  of  time,  and  investi- 
gation of  ways  and  means  by  which  they  may  be  satis- 
fied, lead  at  once  to  the  problems  of  cultural  and  legal 
evolution;  and  clearly  show  the  luxuriance  of  ideas 
which  struggle  to  expression  in  the  life  of  the  peoples, 
as  product  of  the  prodigious  psychical  labor  which 
humanity  as  a  whole  is  able  to  accomplish. 


xliv  AUTHOR'S  PREFACE 

A  unity  of  spirit  rules  mankind  and  evolution  forces 
its  way  out  of  universal  substance;  thus  have  the 
greatest  thinkers  of  all  ages  spoken,  from  the  Vedanta 
philosophers,  and  the  Persian  Sufis,  up  to  Averroes, 
Eckhart,  and  Hegel.  Legal  Philosophy  attains  its  high 
consecration  in  the  thought  of  this  unity;  and  the  illus- 
trious ideas  of  Hegel,  with  proper  correction,  have  again, 
in  the  course  of  events,  come  into  the  foreground,  after 
philosophy,  and  therefore,  also,  Philosophy  of  Law,  had 
slumbered  for  two  decades. 

Materialism  is  dead;  the  philosophy  of  Spirit  still 
lives. 

JOSEF  KOHLER. 

BERLIN,  October,  1908. 


Philosophy  of  Law 


PHILOSOPHY  OF  LAW 


CHAPTER  I 

THE    PHILOSOPHY    OF    LAW   AND    ITS 
SIGNIFICANCE 

SECTION  I 

INTRODUCTION 

1.  The  Philosophy  of  Law  is  a  branch  of  philosophy,  \ 
of  that  philosophy  which  deals  with  man  and  his  cul-    j  / 
ture.     Its  purpose,  like  that  of  every  philosophy,  is  to 
examine  what  underlies  the  realm  of  phenomena;   and 

to  explain  to  us  whether  there  are  powers,  and  what 
they  are,  behind  what  we  have  perceived  with  our  senses, 
and  what  our  reason  has  given  us  to  understand.  Direct 
perception  by  the  senses  and  its  treatment  lie  within 
the  province  of  the  science  of  experience.  But  the  ques- 
tion whether,  after  the  science  of  experience  has  done 
its  part,  there  is  still  a  deeper  significance  in  the  results, 
belongs  to  philosophy. 

2.  More  is  to  be  said  of  this  in  dealing  with  philosophy 
as  an  auxiliary  science.     But,  above  all,  it  must  be  ex- 
plained here  that  the  Philosophy  of  Law,  as  a  branch  of 
the  philosophy  of  man,  is  concerned  with  searching  out 
what  underlies  human  existence,  and  what  is  the  deeper 
significance  of  human  activity. 


4  PHILOSOPHY   OF   LAW  [Cn.  I 

3.  Human  activity  is  cultural  activity.  Man's  task 
is  to  create  and  develop  culture,  to  obtain  permanent 
cultural  values,  thus  producing  a  new  abundance  of 
forms  which  shall  be  as  a  second  creation,  in  juxtaposi- 
tion to  divine  creation. 

.  To  expound  the  deeper  significance  of  this  creation. 
of  culture  is  the  task  of  metaphysical  science.  To 
examine  more  closely  into  it  is  an  important  under- 
taking that  would  carry  us  beyond  the  confines  of  the 
philosophy  of  culture  and  man,  into  the  sphere  of  uni- 
versal world  culture.  All  that  we  can  do  here  simply  is 
to  assume  as  granted  that  the  promotion  of  culture  is 
one  of  the  tasks,  or  rather,  the  task  of  humanity. 

5.  Only  so  much  must  be  Borrowed  f  rornthe  universal 
domain    of    world    philosophy:     culture    is    constantly 
developing,  and  humanity  must  guard  the  existing  cul- 
tural values  and  continue  to  create  new  ones.     Culture 
must  move  forward.     Its  progress,  however,  is  not  a 
simple  advance;    rather,  its  development  proceeds  in 
such  manner  that  the  seeds  of  the  new  are  already 
present  in  what  exists,  and,  as  the  one  grows  and  the 
other  decays,  new  values  are  constantly  created  out  of 
the  old. 

6.  In  the  evolution  of  culture,  the  law  has  its  place; 
for  human  civilization  is  only  conceivable  if  there  is  a 
system  among  mankind  that  assigns  each  man  his  post 
and  sets  him  his  task,  and  which  takes  care  that  existing 
values  are  protected  and  the  creation  of  new  ones  fur- 
thered. 

7.  This  (system  of)  law  cannot  remain  unaltered. 
It  must  adapt  itself  to  a  constantly  advancing  culture 
and  be  so  formed  that  conformably  to  changing  cultural 
demands  it  promotes  rather  than  hampers  and  oppresses 
it.     Thus  every  culture  has  its  definite  postulates  of 
law,  and  it  is  the  duty  of  society,  from  time  to  time,  to 
shape  the  law  according  to  these  requirements. 


§  1  ]  INTRODUCTION  5 

8.  Hence,  there  is  no  eternal  law.     The  law  that  is"^ 
suitable  for  one  period  is  not  so  for  another :  we  can  only  J 
strive  to  provide  every  culture  with  its  corresponding 
system  of  law.     What  is  good  for  one  would  mean  ruin 
to  another. 

9.  The  law,  as  it  should  be  to  correspond  with  the 
culture  that  exists,  is  not  always  in  accordance  with  the 
existing  law,  for  in  many  instances  the  persons  or  bodies 
in  authority  do  not  perceive  what  is  needed;    certain 
requirements  remain  unconsidered,  or  the  proper  means 
are  not  used  to  meet  them.     In  such  cases  endeavors  in 
two  directions  are  justified:   the  effort  to  have  the  law 
altered  to  conform  to  the  cultural  needs,  and  the  effort  to 
find  an  interpretation  of  the  law  that  will,  so  far  as  pos- 
sible, harmonize  with  the  demands  of  culture. 

10.  Up  to  within  a  hundred  years  ago,  people  talked 
of  a  law  of  nature  and  believed  that  there  was  a  fixed 
permanent  law  suitable  to  all  times  which  merely  had 
not  always  been  realized.     This  view  is  connected  with 
the  further  opinion  that  the  culture  of  humanity,  called 
into  life  by  God,  is,  once  for  all,  complete,  so  that,  at 
the  most,  only  trivial  changes  can  be  necessary;  accord- 
ingly, the  law  should  be  shaped  to  correspond   to   the 
divine  commandments.     In  other  words,  people  assumed 
that  the  world  had  already  reached  the  final  aim  of  cul- 
ture, and,  as  this  culture  was  once  and  forever  perfect, 
so,  too,  would  be  the  law  that  conformed  to  it. 

Yet  this  Natural  Law  has  a  long  history:  it  did  not 
thrive  in  the  times  of  the  real  law  of  nature  but  in  that 
of  the  Scholasticism  which  joined  hands  with  Aristotle, 
who  had  long  lapsed  into  oblivion,  to  be  re-discovered 
later. 


6  PHILOSOPHY  OF  LAW  [Cn.  I 

EXCURSUS 

In  its  beginnings,  Natural  Law  goes  back  to  our 
lord  and  master,  Aristotle,  and  to  the  seventh  chapter 
of  the  fifth  book  of  his  remarkable  "Nicomachaean 
Ethics."  The  so-called  Natural  Law  of  Hugo  Grotius 
and  his  successors  is  nothing  but  vain  repetition  of  the 
ideas  that  the  Scholastics  produced  in  the  midst  of  a 
stormy  battle  of  minds.  In  place  of  the  richness  and 
life  which  we  find  in  the  Scholastics,  after  the  period  of 
Hugo  Grotius  we  see  nothing  but  stagnation  and 
strained  effort;  and  whereas,  in  the  Middle  Ages,  Natural 
Law  protected  the  nations  against  the  caprice  of  princes 
and  papal  power,  defended  German  from  Roman  law, 
and  upheld  the  demands  of  what  was  reasonable  in  the 
face  of  what  had  became  historical,  since  Hugo  Grotius 
it  has  scarcely  done  more  than  perform  the  admittedly 
important  service  of  forming  the  basis  of  international 
law.  It  was  not  vitalized  until,  in  connection  with  the 
contractual  theory  of  the  State  (Staatsvertrag) ,  the 
idea  of  the  rights  of  man  arose,  not  for  the  first  time, 
by  the  way;  for  the  Scholastics  had  given  utterance 
to  similar  ideas  long  before  Jean  Jacques  Rousseau, 
and  long  before  the  American  colonists  and  the  French 
Revolutionists  tossed  the  doctrine  of  the  rights  of  man 
>  like  a  burning  torch  into  the  masses  of  the  people. 
/  The  fundamental  idea  of  Natural  Law  thus  began 
V  with  Aristotle,  and  continued  up  through  the  Stoa 
into  Roman  law,  and  into  the  Middle  Ages.  Aristotle 
was  headed  in  the  right  direction.  He  assumed  that 
even  though  the  law  be  susceptible  of  constant  change, 
it  must  yet  contain  an  inner  uniform  power  that  seeks 
to  turn  us  in  the  direction  of  welfare.  But  where  this 
course  lay,  and  what  the  relation  of  this  constancy  is 
to  the  mobility  of  history  —  these  points  were  the  cause 
of  a  tremendous  struggle  in  the  Middle  Ages. 


§1]  EXCURSUS  7 

Scholasticism  it  is  true,  owing  to  its  starting  points, 
could  only  arrive  at  a  partially  correct  solution,  for  it 
adhered  to  the  acceptation  of  the  Bible  and  to  the  invio- 
lability of  the  tenets  of  the  faith ;  hence  it  could  never 
attain  to  a  free  and  impartial  consideration  of  constantly 
developing  culture,  nor  appreciate  at  its  real  value  this 
striving  for  culture  except  within  the  limits  set  up  by 
religious  dogma.  It  could  not  contrast  one  religion  or 
system  of  morality  with  another,  and  comprehend 
both  as  different  planes  of  culture  and  relatively  justi- 
fied expressions  of  the  human  mind,  but  was  obliged 
to  accept  what  the  Church  taught;  and  even  though 
it  might  be  believed  that  dogmas  sometimes  developed 
more  and  more  as  the  age  advanced,  an  historical 
interpretation  of  all  human  modes  of  thought  was  never- 
theless impossible. 

Aristotle  was  correct  in  thinking  that  the  common 
inner  nerve  of  the  different  systems  of  law  is  directed 
toward  adapting  the  law  as  a  whole  to  the  civilization 
of  the  present,  thus  contributing  to  the  advance  of  culture 
and  the  welfare  of  humanity.  Even  Aristotle,  then, 
recognized  that  the  law  cannot  be  arbitrarily  fixed,  for 
the  established  law  may  run  directly  counter  to  the 
demands  of  the  law  of  reason ;  hence  the  law  must  strive 
to  serve  the  development  of  culture  as  it  stands,  and, 
as  civilization  is  ever  changing,  the  law  must  change 
with  it.  Only  in  as  far  as  the  different  civilizations 
contain  something  that  is  common  to  them  all,  should 
the  law  be  uniform  in  its  elements,  and  when  we  seek  to 
approach  a  cultural  ideal,  certain  propositions  may  be 
established  as  the  leading  principles  of  that  ideal.  It 
must,  however,  be  constantly  borne  in  mind  that  a 
cultural  ideal  is  always  only  relative,  and  with  every 
change  in  culture,  a  new  ideal  will  confront  us.  A  sys- 
tem of  law  within  the  pale  of  Mohammedan  culture 


8  PHILOSOPHY  OF  LAW  [Cn.  I 

could  never  be  the  same  as  the  law  of  the  Christian  or 
Buddhistic  world.  The  Scholastics  were  obliged  to  set 
up  certain  tenets  of  the  Christian  canonical  culture  as 
absolute  principles,  and  if  they  kicked  over  the  traces, 
they  had  to  reckon  with  the  ban  of  the  Church.  Hence, 
it  is  comprehensible  that  the  character  of  their  dis- 
cussions often  seems  very  strange  to  us,  and  we  should 
never  forget  that  beneath  their  reserved  utterances 
the  deepest  thoughts  were  sometimes  concealed  unable 
to  find  a  way  to  the  light.  They  were  occupied  with 
two  questions  in  particular,  questions  that  never  con- 
cern us  now:  why,  in  the  Bible,  God  himself  ordered 
things  to  be  done  that  were  contrary  to  the  ten  com- 
mandments, and  whether  it  were  ever  permissible  to 
depart  from  the  ten  commandments;  that  is  to  say  for 
instance,  whether  under  certain  circumstances  a  man 
might  not  kill,  particularly  in  self-defense.  The  first 
group  of  cases,  for  example,  that  God  commanded 
Abraham  to  sacrifice  his  son,  we  regard  in  an  entirely 
different  light,  merely  as  a  reference  to  the  custom  — 
common  to  all  Semitic  peoples  —  of  sacrificing  their 
children.  (Compare  Augustinus,  "Civitas  Dei,"  I,  21; 
XVI,  32.)  The  second  group  we  explain  today  by 
saying  that  the  rules  of  law  and  morals  are  never  abso- 
lute but  always  embrace  a  number  of  ifs  and  buts,  as, 
for  instance,  the  exceptional  right  to  kill  in  self-defense. 

But  these  discussions  had  a  still  deeper,  political 
significance.  If  God  had  made  exceptions  in  certain 
cases  why  should  not  his  representative,  the  Pope,  do 
the  same?  And  why  not  his  anointed,  the  king?  And 
so  a  new  course  was  set,  and  imperial  and  papal  power 
was  increased. 

But  here  the  Dominicans  created  a  salutary  barrier. 
Albertus  Magnus  and  Thomas  Aquinas  contended  that 
the  law  rested  on  eternal  principles,  and  no  deviation 


§1}  EXCURSUS  9 

was  permissible  except  in  certain  directions,  though 
what  these  directions  were  was  still  the  subject  of  much 
doubt. 

The  Franciscans  opposed  this  view,  and  especially 
Schopenhauer's  predecessor,  the  great  voluntarist,  Duns 
Scotus,  whose  importance  in  the  history  of  the  world 
has  recently  been  recognized.  He  was  the  apostle  of  the 
Will  who  had  seen  deeper  into  its  workings  than  any- 
one before  him.  He  perceived  that  the  Will  is  not  so 
much  the  servant  of  the  mind  as  its  lord,  and  so  to  him, 
as  to  Schopenhauer,  God  was  more  will  than  intelligence, 
and  the  law  valid  not  because  it  is  reasonable  but  be- 
cause it  is  the  will  of  God.  This  opened  the  flood-gates 
and  the  curialists  were  able  to  increase  the  power  of 
the  Pope  immeasurably.  Thus  did  Duns  Scotus  break 
the  way  and  skepticism  as  regards  reasonable  Natural 
Law  spread  in  all  directions.  More  than  ever  before, 
the  relativity  of  the  law  was  recognized.  Duns  Scotus 
even  went  so  far  as  to  advocate  polygamy  when  great 
losses  of  men  endangered  the  existence  of  society. 

But  later  the  pace  was  slackened.  Occam  especially 
tolled  the  death-knell  of  imperialism  while  the  Schism 
and  the  Council  of  Constance  led  to  a  decrease  in  the 
papal  power  and  bowed  it  beneath  the  decree  of  the 
bishops. 

Averroes,  who  as  a  sufistic  pantheist  was  not  bound  by 
ecclesiastical  dogma,  was  the  most  correct  in  his  ideas. 

Between  the  two  stood  the  jurists  like,  for  instance, 
the  great  Bartolus  and  Baldus.  To  them  the  relativity 
of  the  law  and  its  connection  with  culture  was  a  vital 
question;  otherwise  they  would  not  have  been  able  to 
adapt  the  Roman  law  to  Germanic  conditions.  But 
here,  too,  the  development  ran  to  seed;  Bartolus,  Bal- 
dus, and  Albericus  de  Rosate  were  followed  by  small 
minds  whose  pettifoggery  was  just  as  aggravating  as 


10  PHILOSOPHY   OF   LAW  [CH.  I 

the  pettifoggery  of  the  nineteenth  century,  because  they 
lacked  the  vitalizing  connection  with  philosophy. 

When,  at  the  time  that  the  power  of  the  Netherlands 
was  rising  rapidly,  Hugo  Grotius  joined  hands  with  the 
Scholastics;  he  represented  the  intellectualismand  inflexi- 
bility of  Natural  Law,  in  a  way  such  as  had  never  been 
taught  either  by  Albertus  Magnus  or  Thomas  Aquinas. 
Under  his  manipulation  Natural  Law  was  no  longer 
the  resilient  law  that  adapted  itself  to  culture  and  fur- 
thered its  advance ;  it  was  no  longer  the  vitalizing  force 
that  permeates  everything:  he  and  his  successors  repre- 
sented it  to  be  a  motionless  cloud  that  hung  like  an 
incubus  over  life  and  smothered  progress.  And  Wolff's 
Philosophy  of  Law  which  dominated  the  time  of  Frederick 
the  Great  is  one  of  the  most  sterile,  pedantic,  and 
wretched  efforts  that  can  be  found  in  the  whole  history 
of  mankind. 

At  the  beginning,  Natural  Law  may  have  had  signi- 
ficance as  a  protection  against  arbitrary  rule,  but  this 
it  soon  lost,  at  least  in  Germany  and  France-,  and  became 
instead  the  hobby  of  well-meaning  absolutism  which 
undertook  to  maintain  Natural  Law  by  setting  its  foot 
on  the  neck  of  the  nation  and  trying  to  force  it  to  be 
good,  just,  and  happy.  The  theory  of  the  contractual 
origin  of  the  State  (Staatsvertrag) ,  too — as  if  the 
State  had  been  formed  by  agreement  of  the  individual 
members- — a  theory  that  had  become  a  dogma  since 
Hugo  Grotius,  was  modeled  by  the  great  Hobbes  into  a 
shield  and  defense  of  the  princely  aristocracy  of  the 
Stuarts  until  the  revolutionary  minds  in  France  broke 
loose,  and  Rousseau  with  his  theory  of  the  central  social 
unfurled  the  red  banner  of  rebellion. 

This  brings  us  to  the  threshold  of  the  modern  Phil- 
of  Law.     After  the  historical  school  of  law  under 
Savigny  had  demolished  rigid  Natural  Law,  and  Hegel 


51]  EXCURSUS  11 

had  taught  the  idea  of  evolution,  we  might  have  hoped 
that  a  new  period  of  growth  in  the  Philosophy  of  Law 
would  set  in.  But  this  was  not  the  case.  The  collapse 
developed  by  the  powerful  sequence  of  ideas  of  Hegel 
and  Schelling  brought  a  vast  retrograde  movement  in 
German  thought.  Great  ideas  were  replaced  by  hair- 
splitting discussions  of  petty  details,  and  the  elucidation 
of  some  passage  in  the  Praetorian  edict  was  considered  of 
greater  importance  than  an  examination  of  the  formative 
principles  of  law.  A  phenomenal  work  like  Hegel's 
"Rechtsphilosophie"  was  followed  by  amateurish  plati- 
tudes like  Ihering's  "Zweck  im  Recht."  The  lofty 
thoughts  of  men  like  Bartolus  and  Voet,  which  prepared 
the  way  for  a  reconciliation  between  the  needs  of  the 
present  and  legislation,  gave  place  to  a  work  like  Wind- 
scheid's  "Pandekten,"  the  leading  idea  of  which  was 
that  the  sense  of  justice  is  not  a  source  of  law  and  must 
therefore  bow  dumbly  to  legislation,  so  that  the  laws 
themselves  became  implacable  tyrants.  The  philosophic 
jurist  was  gagged  and  bound;  it  was  considered  anti- 
quated and  inelegant  to  speak  of  the  Philosophy  of  Law 
at  all. 

All  this  has  changed.  In  place  of  pettifoggery  the 
science  of  comparative  law  stepped  in,  uniting  all  details 
in  a  world-embracing  whole.  Philosophy  of  Law  attach- 
ing itself  to  Hegel  has  been  revived  as  Neo-Hegelianism 
which  sifted  out  what  was  antiquated,  and,  in  close 
touch  with  the  universal  study  of  law,  introduced  anew 
into  this  study  the  doctrine  of  evolution.  One  of  the 
first,  however,  to  recognize  the  value  of  the  science  of 
comparative  law  was  not  a  jurist,  but  a  philosopher 
whose  like,  since  Hegel,  the  world  has  not  seen  — 
Nietzsche. 


12  PHILOSOPHY  OF   LAW  [CH.I 

SECTION   II 
PHILOSOPHY  AND  THE  PHILOSOPHY  OF  LAW 

1.  As  the  philosophy  of  mankind,  the  Philosophy  of 
Law  must  be  based  on  the  world ;  for  only  as  a  part  of 
the  world  and  as  a  lever  of  the  world-process  can  man's 
significance  be  comprehended  and  his  activity  judged. 
At  the  same  time  it  is  universal  philosophy  that  gives 
us  the  possibility  of  understanding  the  meaning  of  evo- 
lution and  thus  makes  clear  what  this  evolution  has  to 
do  in  human  life. 

2.  Primarily  the  theory  of  the  validity  of  knowledge 
comes  under  consideration,  that  is,  the  question  of  the 
relation  between  subject  and  object,  and  the  question 
whether  our  ideas  of  the  world  are  based  in  reality  on  a 
world,  and  how  this  reality  is  placed  in  respect  to  our 
perceptions.     This  is  the  tremendous  question  of  critical 
realism  which,  already  touched  on  in  the  ancient  world, 
was  later  raised  by  such  scholars  as  Tommaso  Campanella, 
further  discussed  by  the  great  Scotch  skeptics  and  finally 
pressed  to  a  certain  conclusion  by  Kant,  a  conclusion  in 
the  sense  that  the  problem  was  thenceforward  more 
sharply  defined,  not  in  the  sense  that  Kant  found  its 
correct  solution.     The  assumption  that  it  is  altogether 
impossible  to  penetrate  into  the  thing-in-itself,  so  that 
we  are  thrown  back  into  the  region  of  our  own  ideas, 
rests  on  the  mistaken  dualism  that  was  bequeathed  by 
Kant.  This  dualism,  with  its  constant  skepticism,  and  its 
"Ignoramus"  as  regards  the  outside  world,  has  long  since 
been  left  behind,  and  with  it  the  supposition  that  time 
and  space  are  based  only  on  our  conceptions  and  are 
added  by  our  minds. 


§2]  PHILOSOPHY  13 

Far  rather,  we  must  say  that  the  ego  and  the 
non-ego  belong  to  one  great  world-whole,  and  that 
consequently  agreement  must  exist  between  them,  and 
especially  that  time  and  extension,  as  our  mind  has 
perceived  them  for  seons,  must  correspond  to  our  percep- 
tions of  time  and  space  as  the  human  mind  and  even  the 
beings  that  preceded  man  have  received  this  permanent 
impression  from  one  generation  to  another. 

But  if  this  be  so,  if  we  are  to  assume  such  an  agree- 
ment, then  we  can  gladly  enter  upon  an  examination 
of  the  world  by  leaping  across  the  chasm  that  seems 
to  divide  the  ego  from  the  external  world ;  and  having 
once  done  that,  we  can  continue,  by  means  of  our  rea- 
son, to  construct  the  meaning  of  the  world,  and  with 
the  laws  of  our  thought  go  back  to  a  deeper,  more  valid 
foundation. 

3.  The  whole  dualism  mentioned  above  is  so  mon- 
strous and  unstable  that  it  immediately  collapsed  before 
the  onslaught  of  energetic  thinkers.  Fichte  and  Schel- 
ling  sought  to  unseat  it,  and  Hegel  completely  demol" 
ishedit  ("Philosophy  of  Identity").  Of  course  the  ego  is 
only  a  single  offshoot  of  the  great  universe  and  when  we 
regard  the  latter  we  do  indeed  place  ourselves  in  opposi- 
tion to  it  for  a  moment,  but  we  do  so  as  a  part  of  the 
whole  and  this  attitude  must  vanish  at  once  from  our 
mind  as  soon  as  the  process  of  contemplation  is  at  an 
end.  My  remarks  in  the  "Archiv  fur  Rechtsphiloso- 
phie,"  I,  p.  488,  apply  to  this  "Identitatsphilosophie." 

"If  the  ego,  apprehends  the  non-ego,  that  is,  the  ex- 
ternal world  about  it,  as  an  object,  then  the  external 
world  becomes  unified  by  perception  with  our  own  ego. 
and  thereby  forms  an  entity  independent  but  homogene- 
ous to  our  own  ego.".  .  .  "For  the  world  as  the  object 
of  perception  is  intrinsically  equal  to  the  ego  inasmuch 
as  the  latter  is  also  the  object  of  perception,  and  thence 


14  PHILOSOPHY  OF   LAW  [CH.I 

results  of  itself  the  consciousness  that  the  world  and  the 
ego  must  exist  outside  of  us  and  yet  be  connected  with 
our  ego." 

Hegel,  as  always,  expresses  it  best  ("Phenomenology 
of  Spirit,"  p.  161) :  "I  distinguish  myself  from  my- 
self; and  therein  I  am  immediately  aware  that  this  factor 
distinguished  from  me  is  not  distinguished.  I,  the  self- 
same being,  thrust  myself  away  from  myself,  but  this 
which  is  distinguished,  which  is  set  up  as  unlike  me,  is 
immediately  on  its  being  distinguished  no  distinction 
for  me." 

4.  The  chief  error  in  Kant's  philosophy  lies  in  this, 
that  the  difference  between  subject  and  object  is  exag- 
gerated until  it  becomes  monstrous.  According  to 
Kant's  theory  of  knowledge  the  subject,  on  the  one  side, 
stands  all  alone  in  the  auditorium  of  the  theatre,  and 
before  it  is  the  stage  where  the  performance  goes  on, 
signifying  the  world.  Between  these  two  things  there 
should  be  some  connection,  but  far  from  that:  what  we 
perceive  is  only  a  phenomenon,  a  consequence  of  phe- 
nomena, and  all  that  is  behind  the  phenomenon  is  hidden 
from  us  forever;  for  all  our  mental  powers  can  be  con- 
centrated only  on  the  phenomenon.  We  can  make 
combinations  of  phenomena,  but  the  management  of  the 
stage  with  all  its  machinery  is  permanently  concealed 
from  us. 

This  whole  representation  is  ill-chosen  for  this  reason, 
if  for  no  other:  that  it  makes  such  a  difference  between 
the  pitiable  ego  and  the  whole  world,  that  a  vast  chasm 
separates  them,  that  it  is  scarcely  worth  while  to  go  to 
so  much  trouble  for  the  sake  of  one  individual!  But 
how  is  it  with  the  tremendous  crowd  of  other  egos  that 
also  gaze  into  the  world?  To  the  first  ego  they  too  are, 
of  course,  a  part  of  the  world,  and  what  he  sees  of  them 
likewise  is  merely  phenomenon,  while  the  thing-in-itself 


§  2  ]  PHILOSOPHY  15 

also,  as  regards  them,  is  enveloped  in  fog.  In  addition, 
the  ego  itself  is  ego  only  in  as  far  as  it  perceives  itself, 
while  the  body  with  all  its  pain  and  suffering  is  also 
merely  a  phenomenon,  and  actually  is  also  behind  the 
clouds  that  surround  the  thing-in-itself.  And,  after  all, 
even  the  ego  itself  is  surely  our  ego  only  in  as  far  as  it  is 
the  subject ;  as  soon  as  we  regard  our  own  self  as  an  object, 
it  too  dives  into  the  thing-in-itself  and  we  behold  only  a 
phenomenon.  We  have  a  real  ego  and  a  phenomenon -ego. 
5.  The  idea 'of  the  thing-in-itself  is  appropriate  in 
this,  that  naturally  every  reflection,  every  effect  on  sub- 
jectivity can  only  be  so  understood  that  the  thing-in- 
itself  does  not  enter  into  the  subject,  but  only  makes  an 
impression;  and  it  is  this  impression  that  we  see  as  the 
image  of  the  world.  Thus  exact  similarity  can  never,  of 
course,  exist  between  the  impression  and  the  world,  any 
more  than  it  can  between  the  form  and  the  image 
that  is  cast  in  it.  Nevertheless  it  must  be  reasonably 
possible  not  indeed  to  give  a  duplicate  of  the  form 
but  still  to  say  in  how  far  our  impression  agrees  with 
it,  and  to  what  extent  subjective  elements  enter  into 
this  impression.  And  our  reason  is  capable  of  doing 
this,  for  it  can  comprehend  our  organs  and  their  activi- 
ties, and  hence  also  understand  what  the  effect  is  on 
them  when  an  impression  is  received  from  outside. 
This  is  especially  the  case  because  these  organs  can 
experience  the  most  different  impressions  from  which 
the  unchanging  original  determination  and  attitude 
of  subjectivity  can  be  derived  that  confront  the  objec- 
tive world.  In  other  beings,  too,  we  find  similar  organs 
and  can  ascertain  how  they  operate  and  how  they  are 
influenced  from  outside  by  the  form.  Beyond  that,  of 
course,  we  are  not  able  to  go;  nor  is  it  necessary  to  do 
so,  for  this  knowledge  is  complete.  No  being  can  say 
what  the  image  of  the  universe  is,  if  in  thought  the  being 


16  PHILOSOPHY  OF  LAW  [CH.I 

that  observes  it  is  omitted ;  for  in  that  case  any  image  at 
all  immediately  becomes  impossible.  We  can  only  say: 
in  the  universe  there  is  a  plenitude  of  different  objectivi- 
ties that  operate  on  our  subjectivity  which  represents  the 
slate  on  which  the  images  appear,  but  which  is  so  con- 
stituted that  we  can  deduct  what  is  subjective.  We 
know,  for  instance,  when  we  see  red  and  yellow  that  the 
character  of  the  color  is  an  addition  made  by  our  organs 
of  sight  and  our  reason ;  but  just  so,  it  is  certain  that  the 
difference  in  the  color  must  be  based  on  a  difference  in 
the  object  of  which  we  know  nothing  more  than  that 
vibrations  of  the  ether  have  something  to  do  with  it. 
That  to  another  eye  and  another  mind,  the  colors  may 
appear  different,  is  clear,  but  that  does  not  alter  the 
matter. 

In  the  same  way,  we  know  that  a  difference  under- 
lies the  objects  that  we  see  simultaneously  and  those 
that  we  see  successively,  and  thence  we  derive  the 
abstraction:  space  and  time.  But  that  we  cannot  con- 
ceive of  anything  spaceless  and  timeless  is  not  because 
space  and  time  are  a  creation  of  our  own  minds,  but 
because  in  all  our  concepts  we  are  dependent  on  what 
the  world  offers  us;  and  though  we  may  connect,  may 
add,  or  leave  out  in  thought,  yet,  we  can  never  change 
the  whole  nature  of  anything;  just  as  it  is  impossible 
for  us  to  imagine  an  object  in  another  color  than  those 
which  we  know  (at  most,  in  such  a  way  that  another 
combination  or  gradation  is  introduced).  That  some- 
thing else  must  underlie  the  concept  of  space  and  time 
is  certain.  But  that  is  the  case  with  all  objectivities; 
for  they  are  the  moulds  of  the  impressions  that  we 
experience.  At  all  events,  there  can  be  no  doubt  that 
to  the  time  and  space  difference  in  us,  there  must  be 
a  corresponding  time  and  space  difference  in  the  world. 

This  is  quite  wonderfully  expressed  by  Hegel,  "Phe- 
nomenology of  Spirit,"  p.  138: 


§  2  ]  PHILOSOPHY  17 

"Certainly  there  is  no  knowledge  to  be  had  of  this 
inner  world,  as  we  have  it  here;  not,  however,  owing 
to  reason  being  too  short-sighted,  or  limited,  or  whatever 
you  care  to  call  it  (on  this  point  there  is  as  yet  nothing 
known  at  this  stage;  we  have  not  gone  deep  enough 
for  that  yet),  but  on  account  simply  of  the  nature  of 
the  case;  because  in  the  void  there  is  nothing  known, 
or  putting  it  from  the  point  of  view  of  the  other  side, 
because  its  very  characteristic  lies  in  being  beyond 
consciousness." 

And  in  the  same  work,  page  140: 

"We  distort  the  proper  meaning  of  this,  if  we  take 
it  to  mean  that  the  supersensible  is  therfore  the  sensible 
world,  or  the  world  as  it  is,  for  immediate  sense-cer- 
tainty and  perception.  For,  on  the  contrary,  appear- 
ance is  just  not  the  world  of  sense-knowledge  and 
perception  as  positively  being,  but  this  world  as  super- 
seded or  established  in  truth  as  an  inner  world.  It  is 
often  said  that  the  supersensible  is  not  appearance; 
but  by  appearance  is  thereby  meant  not  appearance,  but 
rather  the  sensible  world  taken  as  itself  real  actuality." 

6.  If  we  stand  in  the  world  in  this  way,  then  it  is 
also  comprehensible  that  the  results  of  our  thought 
must  agree  with  the  world  to  the  extent  that  the  factors 
in  the  objective  world  which  make  impressions,  must 
be  as  our  thought  grasps  them,  assuming  that  we  start 
from  the  right  premises  and  make  no  errors  in  our  con- 
clusions. This  is  not  perhaps  a  "pre-established  har- 
mony," not  chance;  rather  it  is  based  on  the  fact  that 
we  are  a  part  of  the  great  whole  with  which  we  confront 
ourselves  only  at  times  to  disappear  again  in  the  whole. 
During  the  time  that  it  confronts  us  the  whole  still 
continues  to  have  its  effect.  It  is  a  piece  of  machinery 
of  which  we  form  a  part  and  in  which  the  results  of  the 
motions  of  the  machinery  must  correspond  to  one  another ; 


18  PHILOSOPHY  OF   LAW  [CH.  I 

that  is  to  say,  if  the  machinery  is  in  order  and  no  patho- 
logical development  has  set  in.  Thus,  of  itself,  the 
correctness  of  the  axioms  in  mathematics  is  explained; 
the  agreement  of  the  law  of  causality  within  us  and 
outside  of  us  is  explained,  and  Kant's  whole  list  of 
categories.  Here,  too,  it  is  not  necessary  that  our  minds 
should  scramble  about  fruitlessly  in  front  of  the  scenes; 
rather  it  is  possible  for  us  if  not  indeed  to  look  behind 
them,  yet,  by  means  of  our  intellect,  to  ascertain  what 
goes  on  there,  or  at  least  to  find  out  in  what  way  the 
factors  that  cause  impressions  play  behind  the  scenes 
whose  various  activities  correspond  to  the  various 
effects  on  the  surface. 

7.  The  whole  assertion  that  it  is  not  possible  for 
our  power  of  judgment  to  penetrate  into  the  region  of  the 
metaphysical  rests  on  the  erroneous  assumption  that 
the  metaphysical  is  something  so  totally  different  from 
us  that  we  have  no  points  of  contact  with  it.    But  that 
is  not  so.    Even  though  the  metaphysical  be  not  acces- 
sible to  our  perceptions,  yet  it  is  so  to  our  thought.    If 
it  is  impossible  for  us  to  comprehend  anything  eternal 
in  our  view,  yet  it  is  possible  for  us  to  put  something 
eternal  into  mathematics  and  to  work  with  it.     And 
in  this  lies  the  whole  kernel  of  metaphysics.    It  is  neces- 
sary to  exceed  the  bounds  of  time  and  space,  and  to  con- 
struct something  beyond  their  limits;    and  this  we  can 
comprehend  in  our  ideas  making  it  the  subject  of  our 
thought.    The  assumption  that  the  table  of  categories 
reaches  only  as  far  as  our  perceptions  is  purely  arbitrary: 
it  is  true  only  in  as  far  as  a  category  presupposes  time 
and  space,  which  is  not  the  case,  for  instance,  with 
modality.     It  is  pure  arbitrariness  to  assert  that  the 
principle  of  identity  and  of  contradiction  is  attested 
only  in  the  circle  of  the  perceptions. 

8.  Accordingly,   Kant's    whole  system    of    thought, 


§2]  PHILOSOPHY  19 

tremendous  as  are  the  efforts  that  have  been  spent  on 
it,  is  a  maze.  It  is  a  mental  gymnastic  exercise  with 
the  most  monstrous  movements  and  distortions  in 
which  the  straight  is  bent  crooked  and  the  crooked 
straight.  But  just  because  it  is  a  maze,  it  is  futile  to 
follow  it,  at  least  beyond  the  point  where  it  becomes 
clear  that  it  leads  nowhere.  It  is  an  off-shoot  of  the 
Scotch  thought,  that  extends  from  Hume  and  Berkeley 
up  to  Kant,  a  maze  that  had  to  be  made  and  on  which 
Kant  lavished  the  highest  powers  of  his  gifted  mind 
that  still  showed  clearly  traces  of  Scotch  descent. 

A  return  to  Kant  could  only  be  preached  by  an  age 
of  philosophic  barrenness  that  was  not  in  a  position 
to  adapt  Hegel's  philosophy  to  the  period,  and  therefore 
thought  it  more  advisable  to  edify  itself  with  the  acro- 
batic arts  of  Kant's  mental  gymnastics.  Wherever  a 
real  theatre  is  lacking,  people  delight  in  acrobatic  per- 
formances. It  is  comprehensible  that  Zeller,  for  in- 
stance, should  call  people  back  to  Kant,  but  less  so 
that  so  many  should  follow  him. 

9.  This  destruction  of  Kant's  dualism  was  brought 
about  unnoticeably  through  the  identity  philosophy, 
which,  starting  with  Descartes,  was  carried  on  by 
Schelling  and  brought  to  an  admirable  completion  by 
Hegel,  the  main  idea  of  which  is  that  the  difference 
between  subject  and  object  is  only  a  relative  one,  and 
that  therefore  there  can  be  no  question  of  such  a  con- 
frontation of  the  ego  and  the  external  world.  They 
can  stand  opposite  each  other  only  for  a  moment,  and 
essentially  the  activity  in  the  external  world  and  the 
activity  of  our  own  ego  are  the  same,  and  each  of  us  is 
"a  breath  of  eternity"  (ein  Hauch  der  Ewigkeit}. 

Hegel  developed  this  idea  still  further  by  calling  the 
world  process  progressive  logical  thought  with  a  constant 
thesis  and  antithesis  and  their  reconciliation,  so  that 


2f  PHIL«S*PHY  «F   LAW  [CH.  I 

in  this  way  a  continual  progression  takes  place  from 
one  to  the  other;  a  progression  in  the  development  of 
the  great  cosmos  as  well  as  in  humanity.  Thus  history 
becomes  a  magnificent  growth  out  of  which  new  ideas 
constantly  spring  which  gradually  settle  and  clear, 
thus  establishing  the  connection  between  the  past  and 
the  future  in  a  splendid  manner.  And  this  is  done  not 
so  that  past  and  future  stand  in  a  neutral  relation  to 
each  other,  but  so  that  the  future  is  formed  by  the  prog- 
ress that  has  its  rise  in  the  past.  Thus  unified  life  arises 
in  the  world.  Everything  germinates,  sends  forth  shoots, 
and  strives  toward  farther  and  more  distant  aims;  while 
formerly  facts  alone  ruled,  the  Idea  now  holds  sway. 

This  tremendous  achievement  of  Hegel's  reconciled 
the  difference  between  being  and  non-being  on  which 
the  earlier  philosophy  of  the  Eleatics  came  to  grief, 
through  the  principle  of  becoming  (Werden);  for  be- 
coming is  the  mediation  between  being  and  non-being 
and  what  is  becoming,  is;  as  the  old  sinks  into  the 
depths  of  the  past,  the  banner  of  the  future  already 
flutters  before  us:  this  has  become  the  basis  of  all  the 
mental  sciences,  and  above  all,  of  our  philosophic  educa- 
tion. That  it  should  have  been  thought  possible  to 
ignore  Hegel  and  to  return  to  Kant  only  bears  witness 
to  the  great  philosophic  decline  of  the  last  decades  of  the 
nineteenth  century.  The  philosophy  of  the  twentieth 
century  must  take  Hegel  for  its  starting  point  and  Hegel's 
fundamental  idea,  evolution,  is  the  scientific  principle 
of  all  mental  science,  of  our  whole  history,  and  of  every- 
thing that  lives  and  moves  in  our  human  culture;  it 
is  the  fountain  of  youth  for  all  our  scientific  thought. 

At  many  points,  it  is  true,  we  must  deviate  from 
Hegel  and  proceed  with  a  reconstruction;  for  it  is  not 
true  that  the  development  of  the  history  of  the  world 
is  so  logical  and  that  everything  goes  forward  in  three- 


§2]        m  PHIL0S*PHY  21 


§2] 


part  time.  ^^^^^W^Wary,  we  find  a  great  deal  that 
is  illogical  sam  imrhymed;  so  much  so,  that  what  is 
magnificent  scrr.etirres  perishes  never  to  be  seen  again 
and  that  times  of  strongly  pronounced  decline,  patho- 
logical periods  in  the  life  of  mankind,  appear  which  are 
not  in  line  with  evolution,  but  are  rather  directly  opposed 
to  the  course  of  our  development,  (p.  39  (4).)  In  other 
ways,  too,  human  progress  by  no  means  always  corres- 
ponds to  the  development  of  our  thought;  for  reason 
and  brutality  operate  side  by  side  with  wisdom  and 
stability.  Moreover  we  must  also  take  into  considera- 
tion that  the  ways  traveled  by  the  history  of  the  world 
are  extraordinarily  manifold  and  have  thousands 
and  thousands  of  ramifications.  It  follows  that : 

t.  The  logic  of  the  world's  history  is  mixed  with 
much  that  is  illogical,  and  it  is  not  possible  so  to  con- 
strue the  course  of  progress  that  everything  unfolds 
in  accordance  with  a  definite  logical  spirit.  Side  by 
side  with  reason,  stands  its  opposite,  and  the  greatness 
of  the  world's  history  is  attested  simply  by  this,  that  in 
the  final  development,  it  is  reason  that  triumphs. 

t.  The  great  multifariousness  in  Evolution  makes 
it  impossible  to  set  up  certain  types  of  development  for 
all  cases  by  which  universal  history  may  be  judged. 
Any  process  that  has  for  its  object  the  deduction  of  the 
future  from  the  past  by  logical  inference  would  be  entirely 
inadmissible.  History  must  be  studied  in  detail.  If  on 
a  journey,  for  instance,  we  know  the  starting  pomt  and 
the  destination,  this  gives  us  no  k/iowledge^of  the 
course  that  lies  between  them;  and  so  it  is  with  the 
development  of  the  world.  Even  if  the  advance  appears 
sure,  yet  the  way  is  altogether  uncertain,  anct  history 
shows  us  a  charming,  often  too,  it  is  true,  an  affecting, 
tragic  diversity.  This  makes  the  study  of  history  more 
complicated,  but  also  infinitely  more  attractive,  for 


22  PHILOSOPHY   OF   LAW  [Cn.l 

evolution  shows  itself  in  an  unmeasured  multifarious- 
ness.  Just  as  it  would  be  foolish  for  anyone  to  attempt 
to  trace  the  numberless  varieties  of  the  rose  back  to 
the  original  type,  so,  too,  it  would  be  a  mistake  to 
base  the  development  of  the  world's  history  on  one  and 
the  same  logical  principle. 

10.  The  excess  of  Hegel's  logicism  (Logizismus)  was 
opposed  by  Schopenhauer,  who  declared  the  blind  will 
to   be    the   determinative    power;     and    especially    by 
Nietzsche,  who  went  so  far  as  to  assert  that  more  unrea- 
son than  reason  ruled  the  world.     The  truth  of  the 
matter  is  clear  from  the  explanation  we  have  just  given. 

The  view,  however,  that  accepts  Hegel's  philosophy 
of  identity  and  doctrine  of  evolution  on  the  one  side  and, 
on  the  other,  rejects  his  dialectics,  (that  is,  the  theory 
of  a  thoroughly  logical,  rhythmical  growth,)  and  which, 
in  particular,  refuses  to  pigeonhole  the  world's  history 
on  the  basis  of  the  three-part  time  development,  is 
Neo-Hegelianism  which  forms  our  point  of  departure. 

Hegel's  development  of  Idea  becomes,  as  regards  man, 
the  development  of  culture;  we  assume  that  culture 
constantly  progresses,  not  in  regular  succession,  it*  is 
true,  but  with  interruptions  and  with  many  limitations 
and  irregularities.  Culture,  however,  becomes  the 
mental  security  of  the  nations.  It  is  the  mighty  aim 
toward  which  we  strive,  the  culture  of  knowledge  on 
the  one  hand,  and  that  of  new  production  and  new 
activity  on  the  other ;  which  again  is  divided  into  esthetic 
culture,  and  the  culture  that  controls  nature  To 
know  everything,  to  be  able  to  do  everything,  and  thus 
to  master  nature  —  that  is  the  final  aim  of  the  develop- 
ment of  culture,  and  to  have  grasped  this  is  the  charac- 
teristic feature  of  Neo-Hegelianism. 

11.  Only  since  Hegel  have  we  known  the  true  nature 
of  history.     Everything  that  was  produced  in  history 


§2]  PHILOSOPHY  23 

before  that  time,  or  that  was  produced  later  by  those 
who  rejected  Hegel's  doctrines,  was  merely  a  fruitless 
collecting  of  details  that  always  ended  in  shallow, 
trifling  pettiness.  Herder,  who  dimly  anticipated  Hegel's 
doctrine  of  evolution,  was  an  exception,  and  Goethe  too, 
in  whose  all-embracing  mind  Hegel's  ideas  also  sounded. 
In  the  greatest  work  of  genius  that  the  nineteenth 
century  has  produced,  in  the  "Phenomenology  of  Spirit," 
Hegel  explains  this  significance  of  history:  "The  goal, 
which  is  absolute  knowledge,  or  Spirit  knowing  itself  as 
Spirit,  finds  its  pathway  in  the  recollection  of  spiritual 
forms  as  they  are  in  themselves,  and  as  they  accom- 
plish the  organization  of  their  spiritual  kingdom.  Their 
conservation,  looked  at  from  the  side  of  their  free  phe- 
nomenal existence  in  the  sphere  of  contingency,  is  his- 
tory; looked  at  from  the  side  of  their  conceptually  com- 
prehended organization,  it  is  the  science  of  phenomenal 
knowledge,  of  the  ways  in  which  knowledge  appears. 
Both  together,  or  history  comprehended  conceptually, 
form  at  once  the  recollection,  and  the  golgotha  of  Abso- 
lute Spirit,  the  reality,  the  truth,  the  certainty  of  its 
throne,  without  which  it  were  lifeless,  solitary  and 
alone.  Only 

"This  chalice  of  God's  plenitude 
Yields  foaming  His  infinitude." 

And  his  beautiful  thoughts  on  ancient  art  are  also 
true  of  historical  knowledge  in  general: 

"The  statues  set  up  are  now  corpses  in  stone,  whence 
the  animating  soul  has  flown;  while  the  hymns  of  praise 
are  words  from  which  all  belief  has  gone.  The  tables  of 
the  gods  are  bereft  of  spiritual  food  and  drink,  and 
from  his  games  and  festivals,  man  no  more  receives  the 
joyful  sense  of  his  unity  with  the  Divine  Being.  The 
works  of  the  muse  lack  the  force  and  energy  of  the 


24  PHILOSOPHY  OF  LAW  [Cn.I 

Spirit  which  derived  the  certainty  and  assurance  of  itself 
just  from  the  crushing  ruin  of  gods  and  men.  They  are 
themselves  now  just  what  they  are  for  us  —  beautiful 
fruit  broken  off  the  tree;  a  kindly  fate  has  passed  on 
those  works  to  us,  as  a  maiden  might  offer  such  fruit  off 
a  tree.  It  is  not  their  actual  life  as  they  exist,  that  is 
/given  us,  not  the  tree  that  bore  them,  not  the  earth 
\  and  the  elements,  which  constituted  their  substance, 
J  nor  the  climate  that  determined  their  constitutive  char- 
Jacter,  nor  the  change  of  seasons  which  controlled  the 
f  process  of  their  growth.  So,  too,  it  is  not  their  living 
I  world  that  fate  preserves  and  gives  us  with  those  works 
V  of  ancient  art,  not  the  spring  and  summer  of  that  ethical 
life  in  which  they  bloomed  and  ripened,  but  the  veiled 
remembrance  alone  of  all  this  reality.  Our  action,  there- 
fore, when  we  enjoy  them  is  not  that  of  worship,  through 
which  our  conscious  life  might  attain  its  complete  truth 
and  be  satisfied  to  the  full;  our  action  is  external;  it 
consists  in  wiping  off  some  drop  of  rain  or  speck  of  dust 
from  these  fruits,  and  in  place  of  the  inner  elements 
composing  the  reality  of  the  ethical  life,  a  reality  that 
environed,  created,  and  inspired  these  works,  we  erect 
in  prolix  detail  the  scaffolding  of  the  dead  elements  of 
their  outward  existence  —  language,  historical  circum- 
stances, etc.  All  this  we  do  not  in  order  to  enter  into 
their  very  life,  but  only  to  represent  them  ideally  or  pic- 
torially  (vorzustellen)  within  ourselves.  But  just  as  the 
maiden  who  hands  us  the  plucked  fruits  is  more  than 
the  nature  which  presented  them  in  the  first  instance  — 
the  nature  which  provided  all  their  detailed  conditions 
and  elements,  tree,  air,  light  and  so  on  —  since  in  a 
higher  way  she  gathers  all  this  together  into  the  light  of 
her  self-conscious  eye,  and  her  gesture  in  offering  the 
gifts;  so,  too,  the  Spirit  of  the  fate  which  presents  us 
with  those  works  of  art  is  more  than  the  ethical  life 


§  2  ]  PHILOSOPHY  25 

realized  in  that  nation.  For  it  is  the  inwardizing  in  us, 
in  the  form  of  conscious  memory  (Er-innerung) ,  of  the 
Spirit  which  in  them  was  manifested  in  an  outward, 
external  way ;  —  it  is  th  e  Spirit  of  the  tragic  fate  which 
collects  all  those  individual  gods  and  attributes  of  the 
substance  into  the  one  Pantheon,  into  the  Spirit  which 
is  itself  conscious  of  itself  as  Spirit." 

Has    anyone    ever    grasped    universal    history    with 
deeper  comprehension? 

12.     As  has  already  been  mentioned,  the  period  fol- 
lowing Hegel  was  one  of  tremendous  decline  for  the 
Philosophy  of  Law.     The  short-sightedness  that  has  led 
people  to  believe  it  possible  to  build  up  a  Philosophy  of 
Law  without  philosophy  took  a  bitter  revenge.     Natural 
Law  came  again  to  the  fore  in  a  new  form,  and  led  to  a 
sort  of  positivistic  Philosophy  of  Law.  Natural  Law  could  \ 
not  of  course  be  identified  with  positive  law,  but  from  I 
different  systems  of  law  and  various  postulates  of  law  a  \ 
concoction  was  put  together  that  was  then  called  the     ] 
Philosophy  of  Law.    Books  like  those  by  Ahrens,  Krause,— J 
Roder,  are  not  even  worth  while  enumerating;   they  are 
the  products  of  utter  banality  and  poverty  of  ideas; 
similarly  barren  are  the  writings  of  Merkel  who  tried  to 
construct  a  universal  doctrine  of  law  out  of  a  scanty 
knowledge  of  several  legal  systems,  and,  by  his  sham 
reconciliations,    contributed    to    the    decay    of    juristic 
thought. 

Merely  for  the  sake  of  completeness  two  other  experi-  \ 
menters  must  be  mentioned;  first,  Ihering,  who,  in  his 
"Zweck  im  Recht,"  believed  that  he  had  discovered  the 
great  idea  that  the  law  must  have  a  purpose  and  an  aim ; 
though  as  to  the  nature  of  this  purpose  he  did  not  get 
beyond  a  few  stammering  remarks,  yet  his  superficial 
brilliancy  easily  dazzled  the  loftily  wise  juristic  public./ 
As  a  matter  of  fact,  purpose  in  the  law  is  connected  with 


26  PHILOSOPHY  OF  LAW  [Cn.1 

the  whole  development  of  legal  culture,  and  that  can 
only  be  understood  on  the  basis  of  Hegel's  doctrine  of 
evolution,  and  from  it  alone  can  the  ends  of  the  law  be 
deduced:  they  are  cultural  aims,  and  the  nature  of  cul- 
ture is  made  up,  as  was  explained  above,  of  what  Hegel 
endeavored  to  present  in  his  conceptual  dialectics. 
Ihering's  whole  attempt  came  to  grief  on  the  rocks  of  a 
deplorable  dilettanteism ;  only  an  unphilosophical  mind 
like  that  of  Ihering  himself  could  find  satisfaction  in  it. 

Another  attempt,  by  Stammler,  takes  Kant  as  its 
point  of  departure,  and  proceeds  as  if  Hegel  had  not 
existed  at  all.  Stammler  recognizes  that,  in  contrast 
to  the  old  Natural  Law,  the  law  must  change,  and  that 
therefore  all  discussion  of  a  perfect  or  complete  law 
must  be  in  a  purely  formal  sense.  This  formal  law,  he 
seeks  to  represent  as  a  system  of  justice  through  law, 
and  this  again  he  deduces  from  various  criteria.  These 
criteria  originate  in  the  magnificent  growth  of  advancing 
human  culture;  but  he  believes  them  to  be  found  in  the 
definite  requirements  of  individual  or  social  life  that 
exist  once  for  all,  and  in  this  he  is  entirely  in  error. 
Nothing  could  be  more  preposterous,  for  instance,  than 
to  say:  at  no  stage  of  human  culture  has  slavery  been 
just.  This  is  the  result  of  the  retrograde  movement 
from  the  historical  basis  of  Hegel  back  to  the  non- 
historical  exposition  of  Natural  Law  of  Kant.  This 
whole  school  of  thought,  including  Neo-Kantianism,  may 
well  be  buried  and  forgotten. 

13.  The  salvation  of  the  Philosophy  of  Law  can  only 
be  accomplished  by  starting  with  the  reconstruction  of 
Hegel's  doctrine  and  interpreting  his  doctrine  of  evolu- 
tion to  mean  that  mankind  constantly  progresses  in 
culture  in  the  sense  that  permanent  cultural  values  are 
produced,  and  that  man  becomes  more  and  more  god- 
like in  knowledge  and  mastery  of  the  earth.  Only  when 


J2]  PHILOSOPHY  27 

based  on  this  foundation  can  the  requirements  of  the 
law  be  recognized  as  the  requirements  of  the  advancing 
culture  which  the  law  is  to  serve,  and  only  in  this  way 
can  the  true  aim  of  the  law  be  known  for  what  it  is. 

14.  Lasson's  Philosophy  of  Law  alone  gives  us  cause 
for  rejoicing.     He,  the  comprehensive  thinker,  the  keen 
logician,  was  the  only  one  to  perceive  that  the  welfare 
of  philosophy  was  dependent  on  an  intimate  relation  to 
Hegel ;  and  when,  building  upon  Hegel,  with  a  foundation 
of  later  historical  material,  we  do  so  also  in  the  hope 
that  we  are  acting  in  agreement  with  him. 

15.  The  Philosophy  of  Law,  as  indeed  philosophy  in 
general,  has  recently  been  much  furthered,  thanks  to 
the  great  mind  of  Nietzsche,  who  subjected  the  prime 
cultural  questions  anew  to  searching  thought  and  estab- 
lished some  of  them  on  a  new  basis. 


28  DEVELOPMENT  OF   CULTURE       [CH.II 

CHAPTER  II 
THE  DEVELOPMENT  OF  CULTURE 

SECTION   III 
LOGICAL  AND  ILLOGICAL  ELEMENTS 

1.  It  has  already  been  said  that  what  is  logical  in  his- 
tory  is   mingled  with   much   that   is   illogical.     These 
illogical  elements  form  the  realm  of  blind  chance  which 
prevents  development  in  accordance  with  fixed,  stable 
principles,  and  constantly  runs  athwart  human  effort. 
Hence  it  is  necessary,  for  the  progress  of  culture,  that 
chance  be  conquered,  in  nature  in  the  first  place;   but 
in   law,  too,  its  conquest  is  a  phenomenon  peculiar  to 
culture,  in  this:  that  although  the  loss  of  values  brought 
about  by  chance  cannot  be  averted,  yet  it  can  be  altered 
according  to  special  principles  and  distributed  in  such  a 
way  that  its  effect  is  neutralized. 

2.  To  the  illogical  elements  must  be  reckoned  first 
distance  in  time  and  space.     The  advance  of  culture 
seeks  to  overcome  space  and  time :  the  limitations  of  the 
former,  by  making  it  possible  for  persons  to  come  together 
with  no,  regard;  for  the  obstacles  that  space  interposes. 
So,  too,  should  time  be  overcome,  but  in  this  direction 
little  success  can  be  achieved,  for  time  is  much  more 
relentless  towards   human    power  than  is  space.     Yet 
even  in  this  respect,  the  legal  order  has  been  able,  where 
natural  forces  have  failed,  to  effect  an  equivalent  by 
regarding  future  possessions  as  already  legally  in  exist- 
ence, and  thus  making  them  objects  of  commerce.     In 
former  times,  it  was  considered  sinful  and  presumptuous 
to  meddle  in  the  realm  of  the  future;  but  humanity  has 


§3]    LOGICAL  AND  ILLOGICAL  ELEMENTS     29 

outgrown  such  a  belief,  and  by  bringing  matters  of  the 
future  into  the  affairs  of  today,  not  only  have  a  large 
number  of  new  institutions  been  created,  but  also  a 
great  many  advantages  have  been  obtained,  and  the 
nations  of  the  world  have  been  enriched. 

3.  Illogical  elements  are  also  seen  in  the  influence  of 
the  nature  that  surrounds  us.     The  development  of  cul- 
ture, and  hence  also  of  law,  is  largely  conditioned  by 
external  circumstances,  above  all  by  the  character  of 
the  country  where  people  live  and  by  their  environ- 
ment.    Whether  they  live  on  the  plains,  or  in  the  moun- 
tains, near  rivers,  or  near  the  sea,  is  of  determinative 
importance  for  the  advance  of  culture;    and  equally 
whether  they  live  in  fertile,  or  in  barren  lands,  for  on 
this  depends  whether  their  products  will  be  plentiful  or 
scanty.     Above  all,  however,  the  character  of  the  land 
occupied  exerts  a  vast  influence  on  the  possibility,  facil- 
ity, and  quickness  of  social  and  commercial  intercourse. 
The  sea,  especially,  has  been  of  decisive  importance  to 
those  peoples  that  used  it  for  the  development  of  trade 
and  thus  gained  those  material  and  intellectual  advan- 
tages that  are  connected  with  commerce. 

It  has  even  been  asserted,  that  the  whole  variation  in 
the  history  of  mankind  can  be  traced  back  to  these  natural 
foundations,  but  this  statement  is  a  great  exaggeration. 

It  is  possible  to  overcome  these  factors  only  in  part; 
and,  indeed,  effort  should  be  directed  to  this  end  only  in 
so  far  as  elements  that  hamper  culture  are  concerned; 
for  instance,  by  making  commerce  difficult,  or  by  facili- 
tating sudden  attacks.  The  surmounting  of  these  diffi- 
culties seldom  lies  within  the  province  of  the  law,  but  is 
accomplished  rather  by  other  cultural  measures,  so  that 
we  need  not  concern  ourselves  further  with  them  here. 

4.  The  chance  of  life  is  another  illogical  element. 
We  cannot  remove  it  from  the  world,  but  we  can  try  to 


30  DEVELOPMENT  OF  CULTURE      [  CH.  II 

render  it  more  or  less  harmless.  It  is  a  foreign  element 
in  evolution  and  should  lie  in  our  power  to  such  an 
extent  that  we  can  remove  it  where  it  injures  us,  and 
retain  it  only  where  it  is  useful,  or  at  least  neutral. 

Operations  of  the  legal  order  that  aim  at  neutralizing 
chance  are  innumerable.  They  are  particularly  popular 
today,  and  our  whole  life  is  encompassed  by  insurance 
agreements  which  are  intended  to  distribute  the  dangers 
that  meet  the  individual,  over  society  at  large,  and  in 
this  way  to  dull  their  edge.  Also,  in  other  respects, 
there  is  much  in  our  legal  life  that  aims  at  adjustment. 
This  always  takes  the  form  of  removing  the  conse- 
quences of  chance  for  the  sake  of  an  improved  situation 
of  the  whole.  To  this  kind  of  activity  belong  especially 
all  those  institutions  that  seek  by  legal  means  to  restrict 
unjustified  enrichment,  and  to  bring  about  regulation 
that  corresponds  to  cultural  values. 

Such  institutions  we  re  long  ago  known  to  maritime  law, 
where,  by  means  of  the  legal  device  of  the  general  aver- 
age, a  distribution  of  the  losses  among  all  those  involved 
was  accomplished ;  and  today  bankruptcy  has  a  similar 
object  in  which  the  chance  of  quicker  or  slower  legal 
action  is  not  decisive,  effort  rather  being  directed  towards 
equalizing  the  position  of  all  the  creditors. 

5.  Finally,  to  the  illogical  elements  belongs  the 
necessity  —  due  to  the  incompleteness  of  human  under- 
standing—  of  sharp  definitions  and  easily  recognized 
boundaries.  The  law  cannot  follow  all  the  fine  points 
that  arise  in  the  logical  development  of  the  require- 
ments of  culture ;  for  the  law  is  made  for  men  and  for 
human  intercourse,  and  must  therefore  be  practically 
suited  to  such  intercourse.  Hence,  it  must  not  consist, 
for  instance,  of  pure  gold,  but  must  be  so  constituted 
that  it  can  be  used  in  intercourse  among  men,  who,  for 
the  most  part,  know  the  law  only  in  the  rough.  Even 


§3]   LOGICAL  AND  ILLOGICAL  ELEMENTS     31 

he  who  knows  the  law  intimately  will  often  encounter 
great  difficulties  in  judging,  because  the  essential  con- 
ditions are  known  to  him  only  in  part,  and  because  he 
lacks  the  means  of  entering  more  deeply  into  the  actual 
circumstances.  A  system  of  law  that  always  involves  the 
minutest  detail  could  not  be  of  service  to  mankind, 
because  it  could  never  be  realized;  and  a  system  of 
law  that  cannot  be  put  into  actual  practice  is  contrary 
to  the  demands  of  culture.  Hence,  in  this  respect, 
culture  must  cut  into  its  own  flesh,  and  do  without 
the  realization  of  certain  requirements  in  order  to  accom- 
plish all  that  is  humanly  possible.  Here,  too,  the  prin- 
ciple applies  that  the  art  of  living  consists  in  choosing 
the  lesser  evil. 

It  follows,  that  the  law  will  create  a  series  of  insti- 
tutions which  will  meet  demands  only  by  and  large,  but 
which  are  so  constituted  that  they  are  comprehensible 
to  the  average  man.  What  is  lost  in  detail  and  harmony 
will  then  be  completely  balanced  by  the  fact  that  the 
law  sets  certain  definite  limitations. 

(a)  Statutes  of  limitation  and  rights  acquired  by 
long  possession  are  based  on  the  fundamental  idea 
that  time  has  a  certain  effect  on  human  conditions,  not, 
of  course,  time  in  itself,  but  the  many  processes  of  cul- 
ture that  take  place  in  time;  so  that,  after  the  lapse 
of  some  time,  the  law  must  undergo  alterations,  if  it  is 
to  correspond  to  the  new  conditions  that  cultural  pro- 
cesses have  produced.  But  the  moment  when  this 
should  be  undertaken  is  properly  to  be  determined  in 
each  individual  case,  according  to  all  the  peculiarities 
of  the  system  of  law,  in  every  period,  and  in  every 
situation.  It  is,  however,  very  difficult  to  determine 
such  a  matter  in  an  individual  case,  and  the  result 
would  be  endless  uncertainty  that  would  have  to  be 
removed  by  intricate  juristic  inquiry.  That  is  not  feasible, 


32  DEVELOPMENT  OF  CULTURE      [CH.H 

and  hence:  the  law  sets  a  certain  period  in  the  rough, 
on  the  assumption  that  it  will  correspond  fairly  well  to 
the  regular  course  of  events;  and  thus  it  results  that, 
though  in  individual  cases  the  measure  may  be  greater 
or  less,  an  average  or  standard  is  established  which  is 
of  benefit  in  all  cases.  For  this  reason,  too,  it  follows  that 
rights  in  things  of  intellectual  creation  [such  as  patents 
of  invention]  must  lapse  and  disappear  after  a  time, 
because  such  things  are  intended  for  the  whole  of  soci  ty, 
and  must  serve  humanity  at  large;  wherefore  they  can 
be  withdrawn  from  it  only  for  a  time,  that  is,  for  the 
period  in  which  they  have  not  yet  become  a  universal 
cultural  possession.  In  this  instance,  too,  it  is  a  ques- 
tion of  the  individual  case  when  this  change  has  taken 
place,  but,  none  the  less,  the  action  of  the  law  in  estab- 
lishing a  fixed  standard  is  beneficial. 

(6)  To  the  same  group  belong  all  those  cases  in 
which  the  law  allots  a  certain  consequence  to  publicity, 
so  that  what  appears  publicly  in  a  definite  manner  is 
binding  as  against  everyone,  whereas  otherwise  it  is  not 
recognized  at  all  or  only  to  a  limited  extent.  There- 
fore we  have  public  books,  public  registers,  public 
notices  and  announcements;  and  what  conforms  to 
them  is  accepted  more  or  less  as  legal  and  binding; 
for,  in  this  manner,  business  activities  are  provided 
with  security.  Thence,  also,  arise  those  cases, 
where  one  result  is  produced  when  one  acts  in  accord- 
ance with  a  public  record,  ignorant  of  the  reality, 
and  another  result  follows,  when  he  is  cognizant  of  the 
reality. 

Here,  too,  belongs  the  legal  treatment  of  the  pur- 
chase of  movable  goods  under  conditions  that  justify 
everyone  in  believing  the  property  to  be  that  of  the 
seller;  as,  for  instance,  purchases  made  in  the  market, 
in  public  places  of  sale,  etc.,  where  it  may  be  assumed 


§3]    LOGICAL  AND  ILLOGICAL  ELEMENTS     33 

that  the  dealings  are  honest  and  that  publicity  excludes 
all  underhand  methods  and  tricks.1 

This  incompleteness  of  knowledge  can  be  partly 
overcome  with  better  resources  of  getting  information; 
the  law  may  restore  a  right  after  the  expiration  of  the 
limitation  term,  or  it  may  declare  that  the  party  claim- 
ing the  benefit  of  the  limitation  term  must  not  take 
advantage  of  the  expired  term  if  he  has  acted  deceit- 
fully or  dishonestly  in  regard  to  it.  An  example  is  seen 
in  the  treatment  of  the  five-year  term  in  the  action  of 
nullity  in  patent  law. 

6.  Half  way  between  the  logical  and  the  illogical  and 
uniting  them,  in  that  both  psychic  life  and  the  facts  of 
nature  are  subject  to  the  same  power,  stands  the  prin- 
ciple of  causality.  It  applies  in  law  inasmuch  as: 

(a)  The  phenomena  of  law  succeed  one  another 
according  to  certain  laws  of  causation,  from  which  it 
also  follows  that  time  finds  its  application;  for  causa- 
tion without  time  is  unthinkable,  and  that  again  leads 
to  what  I  have  called  the  illogical  element  in  the  law; 
for  time,  as  we  have  seen  above,  is  something  that 
lies  outside  of  our  logic,  that  forces  itself  upon  our 
minds  from  without,  and  this  is  shown  just  in  its  rela- 
tion to  causation.  For  this  reason,  if  anyone  disposes 
of  a  thing  in  two  ways,  the  first  must  precede  the  sec- 
ond; and  if,  as  in  the  Mahabbarata,  the  prince  first 
pretends  himself  to  be  a  slave,  and  then  enslaves  his 
wife,  the  latter  act  cannot  hold;  because,  after  once 
having  become  a  slave  himself,  he  is  no  longer  in  a 
position  to  dispose  of  his  wife.  Not  so,  however,  if  the 
latter  act  had  preceded  the  former  by  a  few  seconds :  a 
fortune  may  hang  on  a  couple  of  moments.  If  two  per- 
sons who  are  related  to  each  other  die  at  the  same  time, 
a  minute's  difference  may  decide  the  fate  of  millions. 

1  Compare  the  further  explanation  in  the  chapter  on  the  technic  of  the 
law. 


34  DEVELOPMENT  OF  CULTURE      [Cn.il 

(6)  The  principle  of  causality  applies  also  to  this 
extent  that  the  operations  of  the  human  mind  follow 
the  law  of  causation  when  the  free  will  does  not  inter- 
vene; that  is,  when  the  effect  on  the  mind  of  others 
conforms  to  the  ordinary  principle  of  sufficient  cause. 

(c)  Causation  also  comes  under  consideration  in 
as  far  as  activity  in  the  external  world  is  of  importance 
to  the  law.  In  private  law  this  is  not  so  much  the 
case;  for  there  action  is,  in  the  main,  a  declaration  of 
will,  thus  having  a  logical  and  mental  basis.  But 
there  are  also  instances  where  external  facts  enter  into 
consideration;  thus,  when  one  man  aids  another,  but 
especially,  in  illegal  acts.  Criminal  law,  however,  is  pre- 
eminently the  province  in  which  causation  is  important, 
for  a  person  is  responsible  for  a  result  with  which  he  is 
connected  according  to  the  laws  of  causation.  One 
fact,  however,  is  frequently  overlooked.  One  may  be 
connected  with  a  result  not  only  as  its  cause,  but  also 
by  fixing  the  condition  by  means  of  which  the  cause 
takes  effect.  Presupposing  that  this  has  been  done  in 
a  guilty  way,  for  one  has  not  actually  given  rise  to  the 
cause  thereby  but  has  made  it  effective  and  removed  the 
obstacles,  this  does  not  indeed  suffice  to  stamp  the  one 
who  performs  the  deed  as  the  one  who  causes  it,  but  it 
is  enough  to  make  him  accountable  for  the  revealed 
causation;  for  it  is  right  that  a  man  should  be  respon- 
sible for  his  wrong,  even  though  he  use  only  natural 
causation  for  his  own  ends.  This  makes  it  appear  as 
if  the  distinction  between  cause  and  condition  might 
be  omitted  altogether,  as  in  criminal  law  generally,  only 
the  guilty  deed  comes  under  consideration;  but  in 
criminal  law,  as  well  as  in  unlawful  acts  in  civil  law, 
there  are  cases  in  which  a  man's  liability  is  not  only 
for  the  wrong,  but  for  the  result.  In  such  cases  only 
the  causation  comes  under  consideration;  for  it  is 


§  3  ]    LOGICAL  AND  ILLOGICAL  ELEMENTS      35 

proper  that  when  a  man  is  liable  beyond  his  wrong, 
this  responsibility  should  be  confined  to  the  realm  of  the 
strictly  causal. 

As  to  the  rest,  the  distinction  between  cause  and  con- 
dition is  what  I  have  already  made  clear:  the  condition 
has  to  do  only  with  being  or  non-being,  causation  with 
the  way  and  manner  of  the  result,  and  this  rests  on  the 
fact  that  it  is  the  cause  that  operates.  The  view  that 
there  is  nothing  operative,  but  only  a  sequence  from 
one  to  the  other,  so  that  is  is  impossible  to  distinguish 
between  cause  and  condition,  cuts  away  the  ground 
from  under  the  whole  conception  of  causes,  and  con- 
tradicts the  fundamental  principle  of  our  theory  of 
perception,  according  to  which  the  categories  of  our  mind 
correspond  to  categories  in  the  external  world,  the 
category  of  causation  no  less  than  the  category  of  time 
and  space.  I  have  already  given  a  fuller  explanation 
elsewhere  and  can  refer  to  that. 

The  following,  however,  is  essential:  it  is  possible  to 
trace  back  the  concept  of  causation  more  or  less,  for 
there  is  always  a  chain  of  cause-momenta  in  which  one 
link  joins  the  next.  Which  of  these  links  is  to  be  re- 
garded as  the  determinative  one  depends  upon  the  way 
we  look  at  it.  The  physicist  will  fix  upon  one,  the  jurist 
on  another.  The  latter  will  naturally  trace  everything 
back  to  the  man  who,  acting  in  accordance  with  or  in 
opposition  to  the  law,  is  accountable  for  the  consequences. 
All  things  that  lie  between  the  man  and  the  consequence 
are  the  links  of  the  chain ;  what  lies  before  the  man  is, 
according  to  the  juridical  view,  very  rarely  of  impor- 
tance, at  the  most  only  in  as  far  as  it  serves  to  charac- 
terize, juridically  or  morally,  the  conduct  of  the  human 
personality.  If,  for  instance,  someone  throws  a  fire- 
brand into  a  barrel  of  gunpowder,  the  juridically  momen- 
tous cause  is  the  throwing  of  the  firebrand ;  the  physicist, 


36  DEVELOPMENT  OF  CULTURE      [  CH.  II 

on  the  contrary,  considers  the  natural  processes  that 
lead  to  the  explosion.  The  psychologist  may  be  con- 
cerned with  the  feelings  and  emotions  that  preceded 
the  act;  they  are  of  importance  to  the  jurist  only  in  as 
far  as  they  aid  him  in  justly  fixing  the  degree  of  guilt. 
But  if  a  juristic  act  is  involved,  the  law  has  nothing  to 
do  with  what  preceded  it;  the  moving  factors  in  acts 
with  which  the  law  is  concerned  are  ordinarily  without 
importance. 


SECTION   IV 
EVOLUTION  AND  PSYCHIC  LIFE 

1.    General  Remarks 

1.  The  culture  of  an  age  is  connected  with  the  soul 
and  the  spirit  of  the  people.     To  fathom  them  is  the 
task  of  folk-psychology  which,  it  must  be  admitted, 
still  needs  to  be  greatly  developed.     It  is  certain  that, 
just  as  in  an  individual,  different   moods  follow  one 
another  owing  to  psychic  necessity,  and  owing  also  to 
laws  that  are  as  yet  partly  unknown,  the  same  process 
goes  on  in  nations.    This  is  shown  too  by  what  is  said 
below  of   pathological  conditions,  but  even  when    the 
mental  equilibrium  is  maintained,  the  most  extraordinary 
psychic  conditions  of  excitement  appear  which  influence 
culture  as  a  whole  and  thus  also  the  sphere  of  law. 

2.  Such  psychic  conditions  are: 

(a)  Religious  fanaticism,  which  leads  to  an  under- 
valuation of  material  things  and  to  a  congregationism 
(Kongregationismus)  and  communism  based  on  com- 
plete severance  from  all  earthly  endeavors.  These  moods 
rest  on  the  predominance  of  religious  emotional  life  in 
which  religious  conceptions,  and  especially  the  belief 
in  a  herafter,  play  a  large  part. 


§4]        EVOLUTION  AND   PSYCHIC   LIFE          37 

(b)  Following  a  period  of  pronounced  egoism  there 
frequently    comes    an    altruistic  reaction  when  people 
devote  themselves  to  the  welfare  of  others,  found  society 
after  society,  league  after  league,  and  seek  not  only  to 
raise  up  the  man  who  is  less  favorably  situated,  but 
actually  to  indulge  him. 

(c)  There  are  periods  in  which  the  inner  life  of  men 
is  entirely  devoted  to  feelings  and  emotions  and  in  con- 
sequence their  power  of  resolution  becomes  paralyzed, 
and  the  life  that  finds  expression  in  deeds  is  almost 
completely  suppressed ;  there  are  times  when  hatred  and 
revenge  grow  numb,  but  this  situation  is  balanced  by 
the  loss  in  initiative  and  power  of  resistance.     Those  are 
the  days  of  sentiment  and  sentimentality.     An  excellent 
example  is  the  latter  half  of  the  eighteenth  century  in 
which  sympathy  for  criminals,  for  example,  infanticides 
etc.,  was  common.     Such  impulses  have  appeared  in  our 
day,  from  time  to  time,  but  not  to  the  same  extent;  for 
it  is  a  peculiarity  in  the  development  of  nations,  that 
when  certain  moods  have  once  dominated  a  people  they 
may  indeed  occur  again  spasmodically,  but  rarely  con- 
trol a  whole  period  a  second  time. 

(d)  There  are   times  when   critical  reasoning  out- 
weighs all  else,  when  people  seek  to  get  to  the  bottom 
of  everything,  will  not  accept  the  authority  of  the  past, 
and  question  every  institution  as  to  its  usefulness.  These 
periods  are  frequently  destructive,  for  many  things  are 
rooted  in  the  nature  of  man  without  it  being  possible 
for  our  reason  to  trace  them  back  to  their  fundamental 
ideas;    and,  besides,  the  connection  with  the  past  in 
itself  is  important  in  order  that  culture  may  not  be 
shallowly  built  on  sand;  for  only  when  founded  on  his- 
tory can  it  take  form  and  shape.     This,  however,  is 
often  overlooked   and   people   try   to   reject  whatever 
reason  cannot  explain. 

1 1 QD4 i 


38  DEVELOPMENT  OF  CULTURE      [Cn.  II 

The  chief  example  of  such  a  time  is  the  period  of 
enlightenment  (Aufkldrung)  at  the  end  of  the  eighteenth 
century  which  had  an  immeasurably  clarifying  effect  as 
regards  the  historical. 

But,  on  the  other  hand,  such  periods  are  necessary, 
because  frequently  historical  fragments  remain  that 
must  be  removed  before  development  can  go  on.  To 
be  sure,  such  things  die  of  themselves,  as  soon  as  the 
nation  is  strong  enough,  but  theirs  is  often  a  very  slow 
death;  and  antiquated  institutions  often  droop  and 
vegetate  a  long  time  without  finding  justification  for 
their  existence  in  the  needs  of  evolution.  Hence,  it  is 
well  if  now  and  then  a  merciless  hand  cuts  them  down. 

3.  It  is  easy  to  understand  how  the  law  is  influenced 
in  all  these  respects.  Since  we  cannot  get  on  without 
earthly  possessions,  congregational  and  communal  life 
leads  to  an  over  development  of  communal  ownership, 
and  property  in  mortua  manu,  and  all  kinds  of  endow- 
ments and  testamentary  dispositions  will  thrive  under  it. 
The  increase  of  altruistic  societies  leads  to  undertakings  in 
the  interests  of  third  persons,  to  the  raising  up  of  special 
social  officials,  and  to  further  elaboration  of  the  law  in  its 
relation  to  such  societies.  Whenever  an  institution  gains 
in  importance  and  appears  in  a  dominant  form,  a  great 
variety  of  new  questions  arise  and  many  complications 
appear  in  new  guise.  Sentimentality  made  itself  felt, 
however,  especially  in  criminal  law  and  led  to  a  complete 
remodeling  of  the  penal  system.  Finally,  the  effect  of 
the  "clearing  up"  periods  is  usually  a  critical  one  through- 
out the  whole  sphere  of  law,  and  wherever  such  periods 
find  antiquated  ideas  they  actively  oppose  them.  This 
may,  of  course,  also  happen  in  the  realm  of  criminal  law, 
for  there  ancient  abuses  are  especially  prominent. 
Especially  in  the  enlightenment  period  of  the  eighteenth 
century,  sentimentality  and  enlightenment  combined 


§4]        EVOLUTION  AND   PSYCHIC  LIFE          39 

with  each  other  in  a  curious  fashion.  The  former 
aroused  a  strong  feeling  of  dissatisfaction  with  what 
existed,  the  latter  grasped  the  defects  of  its  logical  foun- 
dation, and  in  this  way  they  advanced  together  against 
the  past. 

4.  Psychic  life  may  give  rise  to  pathological  condi- 
tions. There  are  aberrations  in  the  development  of 
culture,  necessary  aberrations.  Conditions  often  are 
produced  which  do  not  harmonize  with  cultural  problems 
and  which  cannot  be  said  to  be  justified  and  appropriate 
from  their  standpoint.  The  development  of  culture 
must  proceed  through  the  human  soul :  this  is  a  point  that 
has  received  altogether  too  little  attention.  And  the 
folk-soul  is  like  the  individual  soul:  it  develops  rhyth- 
mically, it  needs  its  aberrations,  its  mad  pranks,  its 
irritabilities,  it  cannot  always  keep  on  the  straight  path. 
Humanity  becomes  surfeited,  overtired,  and  turns  to 
certain  things  that  are  directly  opposed  to  evolution, 
hence  also  to  culture.  Not  till  hecatombs  have  been 

;     sacrificed  to  the  god  of  nonsense  is  humanity  satisfied 
and  ready  to  turn  again  to  reason.     Just  as  it  is  neces- 

\  sary  in  art  that,  from  time  to  time,  pathological  condi- 
•  tions  arise  when  men  rush  into  all  possible  uglinesses, 
.  confusions,  pettinesses,  and  produce  things  that  are  a 
mockery  of  all  artistic  feeling,  not  only  in  the  opinion  of 
a  certain  age,  but  of  all  ages ;  so,  too,  in  the  development  of 
the  law  there  are  periods  of  frightful  confusion  and  crass 
senselessness.  The  persecution  of  witches,  the  misuse  of 
torture,  are  conceivable  only  as  the  expression  of  human 
savagery  and  craziness.  The  duel  without  a  religious 
background  can  only  be  traced  back  to  misguided 
caste  feeling;  terrible  fury  directed  against  foreigners, 
and  much  else,  is  of  the  same  nature.  The  exaggera- 
tion of  justified  endeavors  becomes  almost  blameless, 
when  religious  fervor  leads  to  persecution,  the  love 


40  DEVELOPMENT  OF  CULTURE       [Cn.Il 

of  liberty  to  revolutions,  the  desire  for  order  to  reactions, 
and  when,  by  these  things,  onslaughts  are  made  on 
mankind. 

When  the  history  of  the  law  considers  these  things  it 
must  regard  them  as  pathological  conditions  that  appear 
at  times  when  necessary  disease  takes  hold  of  humanity; 
so  that  only  after  it  has  been  shaken  by  fever  can  recov- 
ery begin,  and  the  refreshed  mind  be  ready  for  new 
achievements. 

The  law,  too,  has  felt  this  keenly;  for  it  is  just  the 
jurists  who  have  been  not  only  the  supporters  of  human 
progress,  but  also  the  ringleaders  in  human  follies  and 
mad  pranks.  In  witch  trials,  tortures,  revolutions,  and 
reactions,  jurists  and  the  law  have  always  taken  a  prin- 
cipal part;  and  the  banner  of  the  law  has  led  mankind 
on  to  its  wildest  orgies  and  most  cruel  persecutions. 

The  impulses  of  development  that  sway  humanity 
must  pass  through  human  psychic  life,  and  only  in  this 
way  can  they  attain  what  the  human  soul  is  capable  of 
accomplishing.  But  this  soul  must,  from  time  to  time, 
grow  ill,  that  it  may  grow  well  again.  Whoever  does 
not  look  at  the  history  of  law  from  this  side  cannot  be 
just  to  it,  and  either  will  have  to  leave  these  human 
errings  uncompreh ended,  or  impute  a  false  meaning  to 
them.  Both  courses  prevent  the  comprehension  of  the 
world's  development.  In  this  respect  almost  nothing  has 
been  accomplished  with  the  history  of  law  until  now, 
because  it  has  been  treated  with  a  total  lack  of  philosophy. 

5.  The  Philosophy  of  Law,  too,  must  take  these 
moods  of  culture  into  consideration  as  necessary  expres- 
sions of  the  folk-soul;  it  must  recognize  that  without 
them  humanity  cannot  develop;  for  just  as  the  individual 
develops  only  according  to  the  principles  of  psychic  life 
(and  as  this  psychic  life,  rooted  in  the  whole  nervous 
system  of  the  man,  must  have  certain  twists)  so  is  it  too 


§4]        EVOLUTION  AND   PSYCHIC   LIFE          41 

in  the  life  of  peoples;  and  the  philosopher  of  law  must 
not  simply  pass  such  occurrences  by.  However  exces- 
sive they  may  be,  he  must  grasp  them  as  necessary  to 
the  development  of  history,  bearing  in  mind  the  fact 
that  Hegel's  idea  of  a  perfect  logic  in  evolution  is  errone- 
ous and  will  not  bear  the  nearer  scrutiny  of  history. 

Nevertheless,  the  far-sighted  legislator  can  mitigate 
much  here;  even  if  the  whole  mood  must  be  struggled 
through  to  the  end,  yet  the  philosopher  of  life,  in  the 
life  of  nations  as  in  the  individual's  life,  can  soften  the 
pathological  tendencies  and  help  out  in  one  way  or 
another  in  order  either  to  further  the  development  or 
to  ameliorate  the  pain  and  suffering  that  it  involves. 

That  will  be  the  correct  attitude  of  the  legislator  if 
he  is  also  a  philosopher  of  law,  and  the  tremendous  prac- 
tical importance  of  the  Philosophy  of  Law  lies  in  that  it 
makes  use  of  the  great  experiences  of  the  past,  and,  at 
the  same  time,  of  philosophical  knowledge  of  present 
world  history. 

6.  The  restraining  element  of  psychic  life  is  contained 
in  that  life  itself.  The  latter  is  not  so  constituted,  that 
what  is  obviously  reasonable  immediately  triumphs; 
rather,  what  exists  often  continues  to  stand,  and  often 
reason  gains  the  upper  hand  only  after  a  long  struggle. 
This  is  the  principle  of  preservation  corresponding  to 
the  principle  of  inertia  in  nature. 

This  principle,  it  is  true,  will  often  hinder  evolution 
and  hold  humanity  back;  but,  on  the  other  hand,  it  is 
of  great  benefit  in  preventing  evolutionary  degeneration, 
and  the  mixing  of  what  is  salutary  in  appearance  only 
with  what  is  actually  so  in  culture,  which  often  does 
great  harm  to  the  whole.  But,  apart  from  this,  it  is 
advantageous  to  evolution,  if  a  certain  kernel  is  pre- 
served as  long  as  possible  in  order  to  keep  the  connec- 
tion, to  restrain  excessive  passion  by  the  memory  of 


42  DEVELOPMENT  OF  CULTURE      [CH.  n 

the  ancients  and  our  ancestors,  and,  especially,  to  keep 
alive  the  idea  that  the  individual  must  obey  existing 
laws  whether  he  considers  them  reasonable  or  unrea- 
sonable. Moreover,  this  restraining  kernel  often  pro- 
duces strong  cohesion  among  the  people,  and  operates 
to  stay  tendencies  favoring  dismemberment. 

This  is  the  standpoint  from  which  this  cultural  phe- 
nomenon must  be  regarded.  We  must  know  that  preser- 
vation and  holding  fast  are  salutary  in  the  history  of 
humanity  whether  the  old  is  good  or  not. 

Sometimes,  however,  preservation  is  carried  to  the 
length  of  senselessness  and  throws  back  a  people  that 
will  not  adapt  itself  to  new  situations;  and  in  this  way 
a  nation  that  has  stood  in  the  first  rank  becomes  insig- 
nificant, and  loses  its  self-consciousness  and  the  power 
to  produce  culture. 

7.  In  this  connection,  it  is  an  old  experience  that 
religious  life  is  more  conservative  than  secular  life.  This 
is  partly  because  the  former  is  less  rational  than  the 
latter;  that  is,  it  rests  on  certain  rules  that  lie  outside 
of  the  mind's  perception  and  which,  because  this  per- 
ception cannot  reach  them,  are  less  influenced  by  the 
progress  of  intellectual  activity.  We  do  not  believe 
because  we  consider  faith  rational,  but  because  faith  is 
something  sacred,  standing  above  humanity.  A  second 
reason  is  the  veneration  for  the  divine  that  lies  in  re- 
ligious life,  from  which  it  follows  that  man  does  not 
trust  himself  to  deviate  from  what  is  regarded  as  the 
divine  will ;  for  such  a  course  would  withdraw  the  grace 
of  God  from  him,  and  give  the  powers  of  evil  the  oppor- 
tunity to  rule. 

Hence,  religious  life  is  not  only  more  conservative, 
but  contains  a  number  of  reminiscent  forms  of  eariler 
life.  For  this  reason,  it  is  extraordinarily  instructive 
for  us;  more  so,  however,  as  history  than  as  philosophy. 


§4]        EVOLUTION  AND   PSYCHIC   LIFE         43 

The  traditions  of  a  people  cling  with  the  greatest 
tenacity  to  religion,  traditions  often  consisting  of  cus- 
toms, the  meanings  of  which  have  been  completely  for- 
gotten, and  which  are  based  on  ideas  that  have  long 
since  been  forsaken.  Such  customs,  like  religious  con- 
cepts, form  a  drag  on  cultural  life  which  does  indeed 
sometimes  hinder  progress  because  of  its  restraining 
power,  but,  on  the  other  hand,  because  of  the  fulness  of 
emotional  life  that  it  contains,  and  by  its  close  connec- 
tion with  the  past,  affords  protection  against  a  too 
hasty  culture  of  the  mind  and  against  a  too  rapid  rush 
forward.  For  progress  should  always  be  made  in  such 
a  way  that  the  fruitful  seeds  of  what  is  passing  are 
retained.  This  is  what  is  valid  in  the  logical  dialectics 
of  the  world-process  which  Hegel  has  described  to  us  in 
such  a  seductive  way. 

8.  Another  peculiarity  is  that  a  people,  while  for- 
saking old  customs,  still  often  retains  their  symbolism 
or  perpetuates  fragments  of  them. 

This  is  also  of  importance  in  the  history  of  culture, 
for  in  this  way  something  is  conceded  to  the  demands 
of  conservatism,  and  in  addition,  it  is  still  made  possible 
for  the  gates  of  progress  to  open.  These  fragments  are 
not  simply  meaningless  ruins  with  merely  an  antiquarian 
interest  attached  to  them ;  they  are,  as  it  were,  a  sop 
thrown  to  antiquity  in  order  to  induce  it  to  retire  from 
the  field. 

2.     The  Psychic  Disposition 

1.  Race  combines  with  inherited  qualities  and  talents 
a  certain  prejudice  and  a  certain  innate  purposefulness 
bred  by  long  practice,  and  is  therefore  especially  fitted 
to  develop  culture  in  its  own  way.  Hence,  the  course 
of  culture  will  be  conditioned  mainly  by  the  race,  to 
which  must  be  added,  of  course,  the  surrounding  world, 


44  DEVELOPMENT  OF  CULTURE      [CH.  II 

and  the  nature  of  the  locality  in  which  the  race  is  active, 
as  was  explained  on  page  24. 

2.  In  addition,  the  historical  development  of  the  race 
especially  comes  under  consideration  and  all  the  events 
that  influenced  its  life ;  in  particular,  whether  it  was  able 
to  spread  out  over  wide  territory,  whether  its  develop- 
ment was  hampered  by  surrounding  peoples,  whether  it 
produced  forceful  men  that  prevented  the  quiet  unfold- 
ing of  its  nature,  and  many  other  points.     In  the  multi- 
fariousness  of  these  influences  lies  the  charm  of  historical 
research. 

3.  In  speaking  of  primitive  peoples,  the  term  should 
not  be  used  to  mean  peoples  without  any  civilization 
whatever.    There  are  no  such  nations.     If  we  consider 
even  their   languages  alone,   we  see  that  races  which 
we  are  accustomed  to  assign  to  the  very  lowest  plane, 
like  the  Australian  savage  for  instance, must  have  a  culture 
of  centuries  behind  them.    For  such  languages  with  all 
their  niceties  of  speech,  with  their  forms  expressing  the 
most  remarkable  logic,  can  only  be  the  result  of  a  devel- 
opment that  has  continued  for  thousands  of  years.    And 
this  also  applies  to  their  religious  views,  which  are  often 
developed  down  to  the  minutest  detail,  and  are  based 
on  concepts  that  it  takes  centuries  to  produce. 

Consequently,  when  we  speak  of  primitive  peoples, 
we  can  only  mean  those  peoples  that  have  not  attained 
to  the  forms  of  culture  that  correspond  to  our  own,  as, 
for  instance,  to  a  written  language,  to  a  complicated 
national  life,  above  all  to  the  political  economy  that 
agrees  with  our  views. 

The  impulse  for  a  regulated  industrial  life  is  often 
lacking,  or  is  only  very  gradually  developed,  according 
to  the  nature  of  the  people.  If  they  have  no  inclina- 
tion for  it  they  accumulate  nothing  but  enjoy  what 
they  have;  indeed,  some  religions  discountenance 


§4]        EVOLUTION  AND   PSYCHIC   LIFE          45 

keeping  anything,  as  it  might  attract  the  evil  spirits, 
etc.  Hence,  when  they  have  anything  to  enjoy,  they 
have  a  superfluity  —  when  they  have  nothing  they 
suffer.  (Compare  p.  54.) 

It  follows  that  such  people  never  acquire  much  wealth. 

3.     Psychic  Impulses 

1.  The  mainsprings  of  human  culture  are  always 
the  mental  capacities  of  man,  the  activity  of  which 
vitalizes  the  history  of  the  world.    They  are  the  wheels 
in  the  vast  mechanism  of  history,  and  include  not  only 
the  qualities  that  appear  in  humanity  as  a  whole,  but 
also  those  that  are  felt  in  the  life  of  the  individual. 
First    come    religious    concepts,    the    consciousness    of 
dependence,  the  instinctive  sense  of  the  interrelation 
between  man  and  nature,  and  the  idea  that  tremendous 
spiritual  powers  permeate  both  nature  and  mankind. 
This  belief  is  bound  up  with  our  human  nature,  and 
follows  us  from  the  beginning  of  time  up  into  the  high- 
est circles  of  culture.     Totemism,  the  worship  of  an- 
cestors, the  ever-present  adoration  of  this  or  that  being, 
the    belief   in   certain   divinities  —  all   these   permeate 
human  life  and  lead  to  innumerable  institutions  of  civil- 
ization.    Agriculture,  marriage,  chieftainry,  the  State, 
law  and  justice,  all  stand  under  the  influence  of  high 
and  the  highest  powers;    even  family  unity  is  held  to- 
gether  by    this   belief:     what   man   thinks   and    feels 
becomes  religious;  it  is  brought  into  connection  with 
those  great  concepts  that  control  life. 

2.  The    notion    that   human   culture    is    controlled 
solely  by  the  instinctive  desire  for  food  and  sexual  life 
is  one  of  the  monstrous  errors  of  a  bygone  dilettanteism, 
a  dilettanteism  that  was  unjustifiable  even  fifty  years 
ago;  for  it  was  already  possible  at  that  time  to  under- 
stand the  life  of  peoples  better  if  more  study  had  been 
devoted  to  it. 


46  DEVELOPMENT  OF  CULTURE      [  CH.  II 

3.  It  is  true,  nevertheless,  that  the  instinct  for  food 
plays  a  large  part,  and  has  produced  a  good  share  of 
existing  human  institutions.     All  of  what  we  call  mate- 
rial culture  is  closely  connected  with  it ;   and  if  we  think 
of  such  institutions  as  the  ownership  of  things  and  the 
ownership  of  natural  products,  we  can  form  an  idea 
of  the  incisive  influence  that  all  this  exercises  on  our 
life. 

4.  But,  in  itself,  the  instinct  for  food  is  brutal;    it 
takes  what  it  can  get  with  no  regard  for  how  it  is  ob- 
tained,  for  man  is  omnivorous  and  consumes  every- 
thing,  even  his  fellow  man.     Sometimes  the  instinct 
breaks  out  with  tremendous  power;    sometimes  man 
goes  hungry,  if  he  can  obtain  nothing.     This  state  of 
things  does  not  change  until  the  instinct  for  food  is 
ennobled  by  becoming  the  instinct  for  wealth,  and  a 
certain   system   and   order   enter   into   the   acquisition 
of  material  goods;    then  man  makes  use  of  nature  not 
only  with  violence  but  with  deliberation,    (p.  54.) 

5.  So,  too,  the  sexual  life  of  man  arises  from  one  of 
the  most  powerful  instincts,  and  the  desire  for  sexual 
gratification    has   produced   a   variety   of    institutions. 
Marriage,  of  course,  is  closely  connected  with  sexual 
instinct;    but,  also,  all   the  forms  of  sexual  commerce 
outside  marriage,  and,  especially,  those  originating  in 
temple  cults,  have  been  called  into  being  by  man's  tre- 
mendous erotic  force. 

6.  The    foregoing   remarks    show    that   we   should 
take  a  very  one-sided  view,  if  we  regarded  hunger  and 
love  as  the  sole  propelling  forces  of  human  existence. 
Still  other  psychic  forces  appear,  chief  among  which  is 
the  love  of  domination  which  is  inherent,  if  not  in  all, 
at  least  in  the  majority  of  human  beings.     The  desire 
to  be  obeyed,  the  enjoyable  consciousness  of  compel- 
ling   others    to    service,    acts    as     an    incentive,    and 


§4]        EVOLUTION  AND   PSYCHIC   LIFE          47 

produces  many  institutions  and  world-renowned  deeds. 
Chieftainry,  and  the  dominion  of1  kings,  are  largely 
rooted  in  this  quality,  and  it  has  been  the  cause  of 
numberless  revolutions,  wars,  and  violent  upheavals. 
In  effect,  it  often  destroys,  yet  as  often  constructs  and 
civilizes. 

The  passion  for  vengeance  is  closely  related  to  self- 
assertion;  for  revenge  is  based  on  the  feeling  that  one 
has  been  humiliated  by  another,  and  thus  injured  in 
one's  love  of  domination.  Later,  this  revenge  gives 
way  to  national  criminal  law,  but  for  a  long  time  it 
represented  justice.  Cruelty  also  is  allied  to  this  love 
of  domination,  but  it  contains  an  additional  psychic 
element,  pleasure  in  inflicting  not  only  humiliation 
but  pain  on  another;  and  this  instinct  of  cruelty  has 
entered  into  the  feeling  of  revenge,  as  well,  besides, 
giving  rise  to  other  human  institutions  and  historic 
deeds. 

7.  The  tie  that  connects  egoistic  and  social  instinct 
is  family  instinct,  which  consists  of  the  need  felt  by  an 
individual  of  maintaining  a  connection  between  himself 
and  others  that  are  near  to  him.    The  feeling  for  family 
coherence    is    independent,    connected,    indeed,    with 
other  elements  in  emotional  life,  but  not  conditioned 
alone  by  them.     It,  too,  is  a  tremendous  factor  in  the 
development  of  human  life.     It  causes  families  to  cling 
together  with  enduring  tenacity,  even  after  the  religious 
tie  has  ceased  to  be ;  and  it  creates  in  the  individual  the 
strong  impulse  to  work  and  suffer  for  the  members  of 
his  family. 

8.  To  these  are  added  still  other  principles  of  a  more 
refined  nature:    the  desire  for  knowledge,  the  artistic 
and  technical  creative  impulse  that  obsesses  thousands 
and  thousands  with  demoniacal  strength,  and  moves 
them  to  discard  and  reject  everything  else;   and  finally 


48  DEVELOPMENT  OF  CULTURE      [CH.  II 

the  impulse  of  sympathy  that  at  first  is  of  the  nerves 
and  sensual,  but  later  is  intellectualized,  and  which 
causes  the  individual  to  devote  his  life  to  the  good  of 
others,  even  to  sacrifice  himself  for  the  whole.  True, 
it  is  not  correct  to  see  in  those  so-called  "altruistic"  acts 
a  complete  contrast  to  egoism,  for  it  cannot  be  denied 
that  the  desire  to  help  others  rests  on  the  effort  to  satisfy 
one's  own  inward  needs,  and  hence  is  beneficial  to  our- 
selves. On  the  other  hand,  we  must  not  overlook  that 
it  is  just  this  egoism  which,  through  the  medium  of 
sympathy,  leads  to  self-renunciation  and  activity  for 
others.  It  is  only  the  dialectic  inversion  that  changes 
the  idea  into  its  opposite. 

9.  All  these  instincts  and  impulses  in  man  incite 
him  unceasingly  to  action,  spur  him  on  to  new  achieve- 
ments: men  build  and  destroy;  often  the  individual  digs 
into  the  flesh  of  the  community,  while  the  community  in 
turn  annihilates  the  individual.  This  is  the  Calvary  of 
mankind,  where  the  spirit  of  universal  history  suffers 
every  moment  and  dies,  to  come  forth  with  new  radiance 
from  the  tomb. 

These  forces,  out  of  which  culture  has  proceeded,  have 
also  shaped  the  law  and  established  it;  and,  again,  the 
law  has  reacted  on  these  forces  in  a  thousand  ways,  pro- 
tecting these  instincts  in  some  directions,  moderating 
and  weakening  them  in  others;  and  all  this  is  a  part  of 
the  task  it  has  to  perform.  In  the  development  of  human 
culture  the  law  is  a  strengthening  as  well  as  a  restraining 
factor. 


§5]  MANNER  OF  DEVELOPMENT  49 

SECTION  V 

MANNER  OF  DEVELOPMENT 

1.     Collectivity  and  Individualization 

1.  Development  consists  of  an  advance  that  does  not 
take  place  simultaneously  and  equally  at  all  points  but 
with    much    variation   and   unevenness,   during   which 
process  culture  assumes  an  increasingly  important  form. 

2.  Humanity  is  destined  to  a  deep  knowledge  of  the 
world  and  of  the  supermundane.     It  is  destined  to  form 
and  to  rule,  to  form  in  the  sphere  of  art,  to  rule  over  the 
earth;  and,  perhaps,  by  virtue  of  technical  science,  over 
further  fields  of  the  universe.     The  totality  of  humanity's 
achievements  is  called  culture;  and  in  this  culture,  it  is 
the  part  of  the  law  to  promote  and  to  vitalize,  to  create 
order  and  system,  on  the  one  hand;  and,  on  the  other, 
to  uphold  and  further  intellectual  progress. 

3.  Two  things  are  necessary  to  this  end :  in  the  first 
place,  an  intensive  development  of  the  individual,  with 
the  highest  possible  training  of  all  the  mental  powers; 
and,  in  the  second,  steady  cohesion  in  order  that  human- 
ity may  not  fall  apart  into  individuals,  that  in  the  strong 
tide   that  sets    toward    individualism   the  community 
may  not  lose  its  hold,  an  event  that  would  be  calamitous; 
for  nothing  great  and  whole  can  be  attained  except 
by  the  devoted,  or  at  least  successful,  collective  activity 
of  individuals.    The  minds  of  men  must  on  the  one 
hand  be  developed  to  the  utmost  as  individual  intellects, 
and,  on  the  other,  all  the  results  obtained  by  these 
intellects  must  be  united  in  the  great  common  temple 
of  humanity;   for   only  in  this  way  can  the  collective 
intellect  of  the   universe   be  effective.     The  collective 


50  DEVELOPMENT  OF  CULTURE      [Cn.  II 

intellect  of  humanity  is  something  entirely  different  from 
the  sum  total  of  individual  intellects. 

Thus  humanity  can  operate  only  in  collectivity;   it  is 
only  the  interchange  of  thoughts  and  feelings,  the  union 
of  forces  to  one  end,  that  makes  it  possible  for  mankind 
to  develop  culture  and  to  achieve  the  great  deeds  that 
constitute  history.     The  assertion  that  it  is  always  indi- 
Mdual  persons  that  mould  events  is  considerably  exag- 
Igerated.     It  is  true  that  forceful  minds  have  in  many 
leases  pushed    culture   forward,   often    in    the   face   of 
I  strong  opposition  on  the  part  of  others;  but  they  were 
I  able  to  do  so  only  by  imbuing  larger  or  smaller  communi- 
ties with  their  own  ideas  and  galvanizing  them  with 
their  own  aspirations. 

4.  Hence,  it  follows,  as  a  matter  of  course,  that  the 
history  of  the  world  had  to  begin  with  communities 
(collectivism);   if  for  no  other  reason,  than  because,  in 
former  times,  the  enemies  of  man  were  so  many  that 
only  strong  cohesion  could  overcome  the  dangers  that 
threatened  him. 

In  later  culture,  we  see  the  individual  gradually  emerg- 
ing from  the  community  and  leading  an  independent 
intellectual  life,  thus  producing  extraordinary  variety 
and  multifariousness  in  the  life  of  the  nations.  But  this 
individualization  must  never  lead  to  the  destruction  of 
the  social  tie,  and  may  dominate  humanity  only  in  cer- 
tain directions.  Humanity  must  always  find  a  way  to 
use  individualism  as  a  stepping  stone  to  new  social 
creations.  Even  though  it  be  possible  for  the  individual 
to  live  his  own  life  and  develop  his  own  personality,  yet 
he  must  always  resort  to  intercourse  with  others,  in 
order  that  the  whole  may  benefit  by  the  results  of  his 
activity  and  thought. 

5.  Hence,  it  is  the  endeavor  of  cultural  life,  even  in 
periods  of  individualization,  to  create  institutions  that 


§5]  MANNER  OF  DEVELOPMENT  51 

will  pave  the  way  for  this  collective  activity  of  the  indi- 
vidual and  the  community.  To  these  belong,  in  the 
first  place,  all  associations,  especially  those  called  juristic 
persons ;  here,  too,  are  to  be  reckoned  all  the  expressions 
of  personality;  for  this  expression  lies  in  the  constant 
contact  of  the  individual  with  his  fellows  which  causes 
the  activity  and  the  passivity  of  the  one  to  affect  the 
whole,  so  that  the  latter  participates  in  the  personality 
of  the  individual.  The  law  of  obligations,  with  all  its 
ramifications,  especially  operates  in  this  way,  and  in 
particular  the  obligation  which  has  its  origin  in  the 
partnership  relation.  The  contract  is  the  special  instru- 
ment by  which  individuals  achieve  their  interests  with  a 
social  effect.  In  this  way  connections  are  established 
between  the  individual  and  the  communal  life  of  man- 
kind, and  just  as  this  occurs  in  the  intercourse  of  indi- 
viduals, so,  too,  it  results  in  the  affairs  between  nation 
and  nation. 

This  constant  alternation  between  collectivism  and 
individualism  is  the  principal  lever  of  cultural  life.  The 
individual  should  develop  independently  but  the  tre- 
mendous advantage  of  collectivism  should  not  therefore 
be  lost. 

6.  Hence  the  course  of  humanity's  development 
from  the  beginning  has  been  this:  first,  mankind  acts 
in  groups,  the  individual  is  absorbed  in  the  group; 
the  law  is  the  law  of  the  group,  not  of  the  individual; 
the  group  is  the  guiding  power;  labors  and  amuse- 
ments are  shared  in  common ;  and  it  is  not  the  individual 
that  thinks,  but  the  group.  Hence  institutions  are 
produced,  like  group-marriage,  communal  property, 
and  common  labor.  In  this  way,  mankind  can  resist 
its  enemies  and  wring  enough  out  of  nature  to  preserve 
what  it  already  has  with  the  scantiest  development  of 
cultural  means. 


52  DEVELOPMENT  OF  CULTURE        [Cn.  II 

To  what  extent  the  individual  is  absorbed  in  the  group 
is  shown  by  the  fact  that  to  be  thrust  out  of  the  com- 
munity is  the  worst  evil  that  can  befall  a  man.  Thence- 
forward he  is  a  nonentity  and  destined  to  destruction. 
Yet,  it  does  sometimes  occur  that  such  individuals 
maintain  themselves,  and  then,  if  more  are  cut  off 
from  the  community,  groups  of  these  exiles  are  formed 
that  continue  to  exist  outside  of  the  chief  race  or  tribe. 

The  dependence  of  the  individual  is  shown  further 
by  the  religious  unity  of  the  community;  for  this  uni- 
fication is  due  mainly  to  the  idea  that  all  the  members 
of  the  tribe  are  protected  by  the  same  spirit,  and  the 
world  of  spirits  is  taken  at  first,  of  course,  not  from 
the  realm  of  fantasy  but  from  that  of  reality.  The 
spirits  are  animals,  and  the  spiritized  tribes  are  animal 
tribes  and  bear  in  themselves  the  animal  nature.  Later, 
this  gives  place  to  the  cult  of  creatures  of  the  imagina- 
tion which  originate  in  the  dreams  and  hallucinations 
of  men,  and  to  ancestor  worship.  A  plurality  of  clans 
is  thus  held  together  by  the  custom  of  group  marriage, 
and  in  this  way  the  legal  order  aids  in  firmly  establish- 
ing and  cementing  the  different  tribes. 

Like  marriage,  all  gain  is  common ;  no  man  works  for 
himself,  but  each  for  a  larger  or  smaller  community. 

7.  When,  in  this  way,  mankind  has  grown  to  a  cer- 
tain measure  of  strength,  when  it  begins  to  cultivate 
nature  and  turn  its  attention  to  agriculture  and  cattle 
raising,  everything  is  still  held  in  common  for  a  long 
time,  but  yet,  individualization  in  the  family  and  indi- 
vidualization  in  wealth  begin  to  be  slightly  developed. 
This  is  increased  by  the  necessity  that  the  tribe  separate 
and  seek  the  means  of  subsistence  in  smaller  groups. 
Thus,  gradually,  tribalism  is  displaced,  and  instead 
of  the  community,  we  find  the  individual  family,  monog- 
amy, and  family  property;  and,  in  that  the  individual 


§5]  MANNER  OF  DEVELOPMENT  53 

enjoys  the  fruits  of  his  own  labor,  communalistic  senti- 
ment changes  into  individualistic  feeling,  which  is  one 
of  the  greatest  forces  that  inspires  human  effort  and 
directs  it  upwards.  Each  man  tries  to  excel  his  neigh- 
bor, and  this  leads  to  an  abundance  of  achievements 
and  a  plenitude  of  new  cultural  values. 

8.  Here,  too,  however,  evolution  exerts  a  cohesive 
pressure ;  for  the  more  intense  individual  development  is, 
the  more  multifarious  it  becomes;    and  the  more  the 
individual  limits  himself  to  a  certain  field,  the  more 
necessary  it  is  for  him  to  associate  with  others.    Thus 
individualism  must   strive    again   toward   collectivism. 
Problems  arise  that  can  be  solved  only  by  common 
effort.     The   family   is  no   longer  able  completely  to 
fulfill  the  duties  of  training  and  education,  individual 
rights  must  be  protected  by  special  means,  and,  above 
all,  it  is  no  longer  possible  to  leave  each  individual  to 
provide  these  means  himself:   the  State  must  intervene 
as   a    protecting   power     and    whereas   formerly   each 
individual  shifted  for  himself,  the  activity  of  the  State 
now  interposes.    The  achievement  of  a  State  procedure, 
a  State  criminal  law,  is  accomplished;  and,  from  hence- 
forth, even   those    institutions  in  which  individualism 
is  most  pronounced,  like  marriage,  require  the  aid  and 
supervision  of  the  State. 

Thus,  we  see  that  the  powers  that  individualize 
humanity  lead  it  again  to  collectivism,  and  where  col- 
lective labor  formerly  went  on  with  the  steady  rhythm 
of  a  pendulum,  individual  effort  now  comes  into  play; 
henceforth,  personal  activity  becomes  the  rule,  and 
this  again  leads  to  a  reconciliation  between  the  individual 
and  the  community. 

9.  Although,  even  before  this,  the  law  was  power- 
fully effective,  its  effectiveness  is  now  increased,  for  the 
expression  of  personality  requires  legal  regulation,  the 


54  DEVELOPMENT  OF  CULTURE      [Cn.  II 

various  activities  of  individuals  must  conform  to  certain 
principles,  without  which  such  activities  could  not 
exist.  And  so,  again,  the  law  is  the  magic  by  means 
of  which  society  as  a  whole  is  held  together,  like  the 
threads  in  a  closely  woven  fabric. 

And  just  as  exercise  of  liberties  and  powers  binds 
individuals  together,  so,  too,  do  international  activities 
bind  nations;  and  so,  once  more,  we  have  the  same 
contradiction  between  the  individual  and  the  collec- 
tivity, and  the  same  reconciliation  brought  about  by  the 
attitudes  of  personality  and  the  laws  that  govern  it. 

10.  Thus  the  history  of  humanity  shows  a  constant 
tendency  toward  individualization,  and  again  an  un- 
ceasing pressure  toward  collectivism;  the  development 
of  legal  principles  corresponds  to  both  these  move- 
ments, immeasurably  increasing  the  forces  of  the  indi- 
vidual, on  the  one  hand,  and,  on  the  other,  promoting 
unity  so  that  the  achievements  and  the  activity  of  the 
individual  may  benefit  mankind. 

2.     The  Culture  of  Wealth  in  Particular 

1.  Higher  civilization  can  only  be  attained  if  a  nation 
feels  an  instinctive  desire  for  property,  leading  it  to 
accumulate  wealth  and  bring  it  into  use.     In  this  way 
alone  can  a  people  reach  a  thoroughly  rational  activity, 
and  men  be  spurred  on  to  make  new  discoveries  and 
conquer  nature:    it  is  the  desire  for  wealth  that  rouses 
and  intensifies  this  side  of  human  culture. 

2.  But,  also,  the  pursuit  of  knowledge  is  greatly 
heightened  by  the  desire  for  wealth.     The  necessity  of 
visiting  foreign  territory  to  dispose  of  wares,  of  learning 
to  know  other  countries,  of  associating  with  other  peoples 
much   promotes  the  cultural   growth  of  a   nation,  for 
trade  binds  together  and  involves  an  exchange  not  only 
of  goods  but  also  of  manners  and  customs,  laws,  and 
other  cultural  values. 


§5]  MANNER  OF  DEVELOPMENT  55 

3.  And,  in  still  another  direction,  the  movement  is 
accelerated,   for   invention    and    discovery   are   closely 
related.     Inventive  activity  leads  to  discoveries,   and 
these  in  turn  support  invention,  so  that  knowledge  is 
much  advanced. 

4.  This  does  not  mean,  however,  that  all  spheres  of 
the  human  mind  are  related  to  trade,  for  the  Hindoos, 
for  instance,   would   hardly  have  become   such   great 
philosophers   if   they  had   not  early  withdrawn   from 
commercial  pursuits;    and  the  monkish  learning  of  the 
Middle  Ages  with  its  philosophical,  theological,  and  his- 
torical tendencies  moved  in  entirely  different  channels. 

Yet,  even  here,  gainful  occupations  were  involved  to 
the  extent  that  ecclesiastical  communities  and  monas- 
teries presupposed  an  industrious  population  that  earned 
enough  to  make  it  possible  for  aspiring  minds  to  devote 
themselves  entirely  to  science. 

5.  In  another  direction,  too,  the  pursuit  of  wealth 
is  of  importance  to  a  people:  a  nation's  power  to  acquire 
wealth  gives  it  the  upper  hand  in  international  quarrels. 

It  must  be  admitted  that  this  is  true  only  within  cer- 
tain limits,  because  the  possession  of  wealth,  especially 
if  it  be  badly  distributed,  may  have  an  enervating 
effect.  Yet,  this  is  partly  removed  if  the  desire  for 
wealth  is  very  strong,  and  what  has  already  been  ac- 
quired does  not  satisfy  the  individual  but  spurs  him  on 
to  new  efforts. 

6.  The  desire  for  wealth  is  not  innate  in  the  human 
race.     It  requires  external  factors  to  urge  man  to  accu- 
mulate and  to  engage  in  regular  gainful  activity,  and 
among  these  factors  two  are  especially  important:  first, 
the  temporary  lack  of  subsistence  which  necessitates  lay- 
ing by  something  for  the  future  as  an  alternative  to 
starvation;    and,  secondly,  agriculture,  which  has  the 
peculiarity  of  bringing  in  all  its  returns  at  one  time  after 


56  DEVELOPMENT  OF  CULTURE        [CH.  II 

a  longer  or  shorter  period  of  labor.  It  follows  that  at 
harvest  time  something  must  be  stored  up  for  the 
ensuing  months. 

When,  in  this  way,  regular  activity  is  developed,  the 
desire  to  accumulate  arises,  and  when  a  nation  has  even 
an  incomplete  grasp  of  economic  principles  the  pursuit 
of  wealth  will  grow  to  greater  dimensions,  and  a  law  of 
property  relations  follows  of  itself. 

7.  As  soon  as  the  desire  for  wealth  becomes  active 
in  man,  what  is  called  capital  makes  its  appearance. 
Under  capital,  which  is  rather  an  economic  than  a  juridi- 
cal term,  is  understood  an  accumulation  of  the  produce 
of  industry  which  is  not   intended   to  be  consumed,  at 
least,  which  is  not  at  once  consumed,  but  is  kept  either 
for  later  consumption  or  to  serve  for  further  production. 
Only  a  nation  that  accumulates  capital  can  rise  above 
the  vicissitudes   of   life   to    consistent   and   permanent 
activity,  and  only  such  can  attain  to  extensive  produc- 
tion.    For  the  latter  always  presupposes  the  existence  of 
capital  for  production,  and  sufficient  supplies  to  allow 
for  time  devoted  to  some  particular  activity. 

8.  Agriculture,  or  rather  the  cultivation  of  the  soil, 
is  one  of  the  essentials  to  higher  culture;   it  leads  to  a 
settled  life  and  makes  it  possible  for  larger  numbers  of 
people  to  live  in  a  limited  territory;   and  it  alone  guides 
man  to  a  sense  of  wealth,  and  to  the  accumulation  of 
capital.     It  sets  him  free  to  a  greater  or  less  extent  from 
the  chances  involved  in  procuring  the  produce  of  indus- 
try and  enables  him  to  lead  a  regular  life. 

On  the  other  hand,  it  presupposes  certain  special 
qualities;  especially,  it  requires  a  man  to  devote  himself 
to  regular  manual  labor  and,  to  a  certain  degree,  to 
subdue  his  passions.  It  also  needs  a  certain  amount  of 
skill  and,  above  all,  the  firm  self-control  that  drives  a 
man  to  work  even  when  he  is  little  inclined  to  do  so. 


§5]  MANNER  OF   DEVELOPMENT  57 

Not  all  the  intellectually  important  nations  have 
developed  these  qualities,  and  where  they  have  failed 
to  do  so,  and  in  consequence  have  not  turned  to  agri- 
culture, they  have  never  been  able  to  rise  above  a  cer- 
tain state  of  culture.  Their  accumulation  of  wealth 
and  capital  has  never  been  sufficient  to  allow  them  to 
obtain  all  those  advantages  that  accrue  from  a  well- 
developed  and  active  desire  for  wealth. 


58  DEVELOPMENT  OF  CULTURE     [Cn.  Ill 

CHAPTER  III 
SECTION  VI 

CULTURE  AND  LAW 

1.  The  requirements  of  the  law  are  the  requirements 
of  culture.  The  law  must  be  so  constituted  that  it 
may  in  the  greatest  degree  conform  with  culture.  It 
must  aid  in  developing  the  seeds  of  culture  and  in  repress- 
ing the  elements  that  are  contrary  to  it.  But  it  must 
be  borne  in  mind,  that  the  course  of  culture  is  often  not 
direct,  that  it  reaches  its  goal  by  a  roundabout  way, 
and  that  not  infrequently  it  has  to  advance  through  a 
long,  uncultured  period.  But  even  such  an  age  demands 
its  system  of  law.  It  will  naturally  desire  a  code  that 
as  far  as  possible  is  in  accordance  with  its  own  uncul- 
tured state;  while,  on  the  other  side,  a  higher  compre- 
hension of  the  law  aims  at  so  ordering  matters  that 
periods  opposed  to  culture  are  shortened  as  much  as 
possible,  that  antagonistic  tendencies  are  weakened,  and 
that  thus  the  normal  condition  of  progress  is  more 
I  quickly  re-established. 

This  often  leads  to  a  schism  in  legal  tendencies  be- 

/    tween  the  masses,  on  one  hand,  struggling  for  a  legal 

/    system  that  will  correspond  to  their  own  uncultured  state, 

/      and,  in  opposition,  far-sighted  minds  trying  to  bring 

about  a  change.    To  realize  this  we  need  only  recall  the 

offering  of  human  sacrifices,  the  persecution  of  witches, 

and  note,  in  our  own  day,  the  custom  of  dueling,  still 

regarded    by    some    people  as  indispensable,     (p.    39.) 

These  are  the  times  when  the  law-giving  spirit  that 

stands  above  the  people  is  especially  called  upon  to 


16]  CULTURE  AND  LAW  59 

wrestle  with   the  popular  mind,   and   to  diminish  its 
illogical  efforts. 

2.  The  requirements  of  the  law  are  evoked  by  the 
needs  of  material  and  intellectual  culture.     Both  should 
be  regulated  and  promoted  by  the  law.     At  the  same 
time,  material   and   intellectual   culture   must   not   be 
sharply  separated  but  must  stand  in  close  relation  to 
each  other.     Material  culture  must  not  stray  into  paths 
where  the  mind  cannot  follow  it,  where  it  would  grow 
unreasonable  and  offend  against  the  principles  of  moral 
life  in  particular;  for  lack  of  morality  is  lack  of  reason. 
In  considering  these  momenta,  recognition  of  the  proper 
requirements  of  the  law  is  called  into  play,  and  further, 
the  art  of  suitably  meeting  these  requirements  with 
new  legal  constructions  and  reforms. 

3.  Fulfillment  of  legal  necessities  is  the  mission  of  the 
legal  order.     The  latter,  like  all  the  elements  of  culture, 
appears  in  na'fve  unconsciousness;   indeed,  originally,  it 
does  not  appear  at  all,  being  enveloped  in  the  whole 
mass  of  cultural  tendencies:    law,   customs,  manners, 
religion,  all  form  one  unity  which  arises  from  the  com- 
prehensive activity  of  the  many  who,  sometimes  fol- 
lowing  a   standard,    sometimes   deviating   from   it,   in 
numberless  details  realize  the  impulse  to  fulfill  the  inner 
necessities  of  the  law.     (Compare  p.  86.) 

4.  Law  is  the  standard  of  conduct  which,  in  conse- 
quence of  the  inner  impulse  that  urges  men   toward  a 
reasonable  form  of  life,  emanates  from  the  whole,  and  is 
forced  upon  the  individual.     It  is  distinguished  from 
morals,  customs,  and  religion  as  soon  as  the  point  is 
reached  at  which  compulsory  standards  are  separated 
from  those  commands  that  involve  merely  social  amenity, 
not  the  possibility  of  remaining  unchallenged  in  society. 

5.  In   the   course   of   development,  the   legal   order 
appears  more  and  more  as  an  order  of  rights,  that  is  to 


60  DEVELOPMENT  OF  CULTURE     [CH.  Ill 

say,  a  distribution  among  mankind  of  the  advantages 
of  life ;  and  one  of  the  important  functions  of  the  legal 
order  is  to  protect  these  rights.1  Yet  this  is  not  its  sole 
task.  It  is  also  the  guardian  of  cultural  values  that  are 
not  distributed  among  mankind  but  which  must  be 
preserved  for  all  humanity,  at  least  for  the  whole  nation, 
to  insure  a  prosperous  development  and  to  promote 
cultural  endeavors.2 

6.  Finally,  it  is  the  function  of  the  legal  order  to 
secure  and  increase  the  progress  of  culture  by  so  moulding 
rights  and  the  universal  cultural  values  which  it  protects 
that  the  hampering  elements  are   removed   and   the 
upward    tendencies   are   supported   and    strengthened. 
This  is  brought  about  especially  by  the  manner  in  which 
personality  gains  its  forms  of  expression.     The  cultural 
forms   of    expression    (Verkehr)    which    are   developed 
through  the  standards  of  law  are  called  acts  in  the  law 
(Rechtsverkehr) ,  and  a  great  many  legal  standards  are 
standards  of  liberty  and  power. 

7.  Acts  in  the  law  (Verkehr)  have  the  mission  of  so 
distributing  material  possessions  that  they  will  be  of 
the  greatest  service  and  benefit  to  humanity.     Hence 
such  acts  are  a  civilizing  factor,  and  everything  that 
supports  them  tends  to  promote  culture.    We  cannot,  it 
is  true,  expect  those  who  are  engaged  in  carrying  on 
pecuniary  transactions  to  serve  humanity  in  this  way. 
Such  altruistic  intentions  would  also  be  far  too  weak 
an  impulse  to  invigorate  human  action.     Egoism,  too, 
one  of  the  greatest  propelling  forces  of  mankind,  is  needed. 
Egoism  in  motion  works  wonders.     It  stimulates  human 
activity,  urges  man  on  to  constant  effort,  sharpens  his 

»  This  subject  has  been  elsewhere  dealt  with.    ("Lehrbuch  des  burger- 
lichen  Rechts,"  I,  p.  46;  "Einfuhrung  in  die  Rechtswissenschaft,"  p.  4.) 

*  This  subject  is  more  fully  discussed  in  connection  with  the  theory  of 
legal  technic,  p.  66. 


§6]  CULTURE  AND  LAW  61 

wits,  and  causes  him  to  be  unremitting  in  his  search  for 
new  resources.  Hence,  the  legal  order  could  not  do 
anything  more  foolish  than  seek  to  uproot  or  even  to 
combat  egoism;  and  it  is  therefore  comprehensible  that 
laws  relating  to  human  activity,  especially  commercial 
law,  are  based  on  this  egoism;  for  one  of  the  most  essen- 
tial processes  in  history  is  just  this  use  of  individual 
instincts  to  form  the  culture  of  the  whole.  The  inten- 
tion to  benefit  society  may  indeed  be  present  as  a  very 
secondary  consideration,  but  its  importance  is  relatively 
slight. 

Objectively,  however,  external  life  must  be  so  adjusted 
that  it  serves  the  interests  of  culture;  that  is,  it  must 
tend  at  the  same  time  to  increase  the  quantity  of  the 
world's  goods  and  to  extend  their  usefulness.  If  trade 
moves  in  other  directions  than  these,  it  is  unfruitful, 
and  may  even  have  an  injurious  and  corruptive  influence. 
Thus  it  is,  for  instance,  if  commerce  becomes  simply 
gaming,  so  that  no  redistribution  of  material  possessions 
is  brought  about,  but  merely  one  individual  is  made 
richer  and  the  other  poorer;  that  is,  one  loses  what  the 
other  gains.  In  this  way,  gaming  stands  in  contrast 
to  speculation.  If  two  merchants  agree  that,  according 
to  the  state  of  the  prices  in  the  exchange,  the  one  must 
pay  the  other,  this  is  simply  a  game  that  brings  about 
no  actual  movement  of  wares.  But,  if  they  agree  that 
on  a  definite  day  the  one  is  to  deliver  goods  to  the  other 
at  a  certain  price,  the  one  does  indeed  become  poorer 
and  the  other  richer;  but  a  transfer  of  wares  has  been 
accomplished,  and  this  is  part  of  the  organic  movement 
of  commerce,  the  general  practice  of  which  invigorates 
culture,  for  commerce  is  composed  of  a  multitude  of 
separate  movements  and  every  separate  movement  or 
transaction  operates  as  a  part  of  the  whole. 

Speculation  is  a  combination  of  transactions  under- 
taken for  the  purpose  of  gaining  profit  from  the  whole. 


62  DEVELOPMENT  OF  CULTURE     [Cn.  Ill 

A  man  tries  to  bring  about  a  movement  of  goods  that 
will  also  bring  him  personally  an  advantage,  as,  for 
instance,  if  one  buys  goods  and  sells  them  again;  he 
hopes  to  sell  them  at  a  higher  price  than  he  paid  for 
them.  The  combination  of  these  two  transactions,  pro- 
ducing the  profit  that  remains  to  the  purchase,  after  he 
has  resold  the  wares,  and  thus  thrown  them  once  more 
on  the  market,  is  speculation.  The  profit  that  he  gains 
by  this  speculation  is  the  result  of  his  own  effort,  and  is 
the  reward  for  his  activity,  which  is  cultural  in  its  effect, 
just  because,  by  moving  the  wares,  he  has  enriched 
commerce. 


§7]  PEACEABLE  REGULATION  63 

CHAPTER  IV 

SECTION  VII 

LEGAL  ORDER  AND  PEACEABLE  REGULATION 

1.  In  addition  to  the  legal  order  peaceable  regulation 
is  indispensable.     It  rests  primarily  on  a  religious  basis 
and  is  therefore  dependent  on  the  religion  that  domi- 
nates society.     This  peaceable  regulation  is  a  necessity 
founded  on  the  peculiar  nature  of  our  race,  and,  espe- 
cially, on  two  qualities:  our  blind  passionateness,  and 
the  incompleteness  of  our  knowledge.     If  it  were  always 
possible  to  see  clearly  and  surely  into  the  existing  state 
of  the  law,  the  members  of  the  human  race  might  more 
easily  be  allowed  to  seek  and  provide  their  own  law, 
but  the  errors  and  ignorance  of  the  mass  and  the  diffi- 
culty of  solving  many  legal  problems  make  it  impossible 
permanently  to  leave  the  exercise  of  the  law  to  the  indi- 
vidual;   for,  since  legal  views  and  legal  interpretations 
are  highly  variable,  the  result  would  be  collision  of  irrec- 
oncilable  contradictions;    and  instead  of  a  settlement 
we  should  have  merely  oppression,  the  victory  of  the 
stronger,   without   either  the  one  or  the  other  being 
obliged  to  declare  himself  legally  defeated.     But  the 
blind    passionatenesss   of   men    frequently    causes   the 
efforts  of  justice  to  be  clouded  by  injustice,  and  leads 
men  to  try  to  gain  an  advantage ;  that  is,  to  gratify  their 
animosities  with  no  heed  to  the  law. 

2.  Thus  it  happens,   that  even  in  cases  where  the 
law  is  as  clear  as  day,  its  administration  is  difficult,  and 
sometimes  the  debtor  resists  it  with  the  greatest  obsti- 
nacy; sometimes  people  claim  the  right  to  legal  redress 


64  DEVELOPMENT  OF  CULTURE      [CH.  IV 

entirely  without  justification.  In  such  case  legal  pro- 
cesses become  acts  of  violence,  and  under  the  cloak  of 
justice  injustice  is  done;  the  administration  of  justice 
becomes  a  pretense  concealing  acts  of  violence  of  the 
worst  sort. 

3.  To  this  is  added,  in  the  course  of  time,  inequality 
of  position  and  means.  One  man  is  economically  and 
socially  strong,  the  other  is  not.  One  has  an  abundance 
of  resources  on  his  side,  the  other  stands  alone.  In 
such  cases,  the  evil  consequences  that  arise  from  the 
human  qualities  mentioned  above  appear  with  double 
and  triple  force.  The  weaker  man  cannot  maintain 
his  right  against  the  stronger,  because  the  latter  is  able 
to  give  rein  to  his  passionate  animosity;  and  this  might 
tempt  him  to  do  violence,  under  the  cloak  of  justice,  to 
the  poor  and  weak  that  stand  in  his  way.  Owing  to 
these  human  frailties,  the  legal  order  alone  cannot 
suffice;  peaceable  regulation  must  be  added.  The  pur- 
port of  the  latter  is :  the  existing  state  of  society  with  its 
interests  must  not  be  changed  by  arbitrary  power,  not 
even  if  the  former  is  not  in  accordance  with  the  law; 
if  it  is  to  be  altered  the  change  must  be  wrought  by  a 
higher  authority,  one  from  which  a  dispassionate  examina- 
tion of  the  matter  and  a  deeper  insight  into  the  law  may 
be  expected. 

This  need  of  peaceable  settlement  has  given  rise  to 
two  institutions :  first,  possession  in  connection  with  the 
institutions  of  necessary  defense  for  the  protection  of 
the  person  and  of  his  interests  ( Notwehr} ;  second,  the 
means  of  realizing  the  law  and  settling  disputes,  that  is, 
legal  process  (civil  procedure). 

Still  another  institution  belonging  to  peaceable  regula- 
tion is  of  importance  for  a  long  time  in  history,  though 
later  it  loses  something  of  its  significance.  This  is  the 
right  of  sanctuary,  which  checks  kin-revenge,  and  in  this 


§7]  PEACEABLE   REGULATION  65 

way  leads  to  the  State  penal  system.  The  extension  of 
sanctuary  is  nothing  else  but  the  complete  abatement  of 
kin-revenge,  and  thus  the  echoes  of  the  idea  of  sanctuary 
continue  to  be  heard  in  later  periods.  While  formerly  kin- 
revenge  was  limited  according  to  locality,  time,  and  other 
circumstances,  it  is  now  entirely  abolished;  for  every 
place,  every  time,  and  all  circumstances  are  sanctuary, 
and  resist  its  power. 


66  TECHNIC  OF  LAW  [Cn.  V 

CHAPTER  V 
THE  TECHNIC  OF  THE  LAW 

SECTION  VIII 
1.    RIGHTS  AND  THE  CULTURAL  ORDER 

1.    General  Remarks 

1.  The  technic  of  the  law  is  part  of  the  Philosophy  of 
Law  only  in  that  it  must  be  such  as  to  accomplish  the 
tasks  required  by  the  Philosophy  of  Law.     Any  legal 
technic  that  fails  to  produce  on  culture  the  effects  that 
legal  philosophy  demands  is  a  failure. 

2.  Legal  technic  must  be  so  constructed  that  rights 
may  exist,  in  such  manner  that  a  so-called  legal  subject 
(Rechtssubjekt)  is  the  holder  of  the  right,  and  that  his 
interests  are  secured  by  law,  and  that  he  is  provided  with 
the  possibility  of  using  the  object  of  his  right  as  he  wishes, 
thus  exerting  an  influence  on  the  cultural  world. 

3.  But  this  alone  is  not  enough,  for  also  the  general 
interests  of  mankind,  which  cannot  be  traced  back  to  a 
single  human  individual,  require  to  be  upheld  and  pro- 
moted.    In  order  thus  to  fulfill  the  requirements  of 
culture,  legal  technic  has  developed  in  two  directions: 

(a)  The  law  issues  commands  and  prohibitions,  the 
essence  of  which  is  not  that  the  rights  of  the  individual 
shall  be  preserved,  but  that  the  original  interests  of  cul- 
ture in  general  shall  be  promoted.  Under  this  head 
belong  the  many  regulations  in  respect  to  sanitation,  to 
the  promotion  of  morality  in  general,  to  the  preservation 
of  a  certain  state  of  the  earth's  surface  (the  supervision 
of  rivers,  conservation  of  forests,  etc.) .  Here,  too,  belong 


§  8  ]     RIGHTS  AND  THE  CULTURAL  ORDER       67 

the  manifold  statutes  that  refer  to  education,  social  and 
economic  conditions,  etc.  This  is  the  field  of  cultural 
advancement  through  police  and  penal  regulations.  In 
connection  with  this  stands  the  law  of  taboo. 

Taboo  in  general  means  forbidden,  and  refers  to  every- 
thing that,  for  reasons  based  on  mystical  and  religious 
grounds,  is  forbidden  to  the  individual,  the  whole  or  a 
part  of  the  people.  Thus  the  conception  grows  out  of 
primitive  mysticism,  but  it  has  a  strongly  formative 
effect,  for  a  great  deal  of  what  is  necessary  to  human 
progress  is  accomplished  by  means  of  such  prohibitions. 
We  need  only  recall  the  great  number  of  sanitary  meas- 
ures that  could  not  have  arisen  except  in  this  way. 
Of  course,  originally,  the  taboo  was  enveloped  in  a 
mass  of  so-called  superstitions,  that  is,  in  a  mass  of 
ideas  which,  in  one  direction  or  another,  gave  expression 
to  a  principle  of  faith,  only  to  die  out  later  because  they 
were  merely  of  temporary  significance,  and  disappeared 
in  the  light  of  more  advanced  knowledge. 

In  this  way  the  custom  of  taboo  could,  to  a  great 
extent,  take  the  place  of  our  police  regulations;  for  as 
soon  as  priesthood  and  chieftainry  become  more  power- 
ful, not  only  those  things  are  tabooed  that  have  hitherto 
been  sacred,  but  the  priests  and  chiefs  have  the  right  of 
putting  others  under  taboo.  If  they  do  not  exercise 
this  right  arbitrarily,  but  on  rational  grounds,  the 
taboo  becomes  a  beneficial  means  of  removing  the 
absurdities  and  indecencies  of  the  people,  and  investing 
life  with  a  certain  dignity  and  sublimity. 

(&)  Another  technical  possibility  is  the  creation  of 
so-called  juristic  persons.  The  law  may  invest  either 
an  aggregate  of  men,  or  a  unity  of  interests  organized 
for  the  purpose  of  carrying  out  some  definite  aim,  with 
legal  subjectivity  and  give  them  the  possibility  of  hav- 
ing rights  and  duties  and  undertaking  legal  acts.  Through 


68  TECHNIC  OF  LAW  [CH.  V 

this  legal  figure  of  the  juristic  person,  the  legal  order 
obtains  a  lever  which  enables  it  to  operate  in  all  direc- 
tions for  its  own  ends,  not  only  for  a  time,  but  perma- 
nently. And  thus  it  gains  the  means  of  protecting 
animals,  for  instance,  of  which  we  shall  have  more  to 
say  shortly,  (p.  69.) 

The  question  whether  the  juristic  person  is  real  or 
imaginary  should  never  have  been  seriously  advanced. 
It  is  a  reality  in  the  law  like  every  reality  created  by  the 
law.  It  is  not  a  human  being  of  flesh  and  blood.  Old 
and  new  absurdities  that  testify  to  the  failure  to  compre- 
hend this,  need  not  be  considered. 

(c)  Where  the  person  oscillates  between  existence 
and  non-existence,  or  when  the  interests  of  a  future 
person  are  to  be  presently  secured,  a  constructive  legal 
subject  is  necessary,  in  order  that  the  possibility  may 
exist  of  having  rights  and  holding  possessions  that  serve 
this  end,  and  in  order  that  property  may  daily  and 
hourly  participate  in  the  expressions  of  life,  essential  to 
its  development.  There  are  no  rights  without  an 
owner,  that  is,  rights  that  lack  the  subjective  element; 
indeed  the  whole  assumption  of  rights  without  an  owner 
is  at  variance  with  the  fundamental  construction  of  our 
law,  and  at  the  same  time  with  the  permanent  needs  of 
the  external  world.  For  a  constructive  legal  subject, 
a  human  organ  is  necessary;  but  there  may  be  various 
organs:  thus,  if  it  is  a  question  of  the  accumulation  of 
wealth  for  a  definite  purpose,  then  the  organ  is  the 
committee  that  collects  it,  and  the  person  operates 
through  this  organ;  if  there  is  no  such  committee,  or 
if  it  has  ceased  to  be,  a  trustee  must  be  appointed,  who 
is  then  the  organ  of  the  person. 

But,  how  is  it,  if  property  is  devoted  to  certain  purposes 
without  the  existence  of  a  committee;  as,  for  example, 
when  feed  baskets  are  put  up  for  birds,  wreaths  laid  on 


§8]    RIGHTS  AND  THE  CULTURAL  ORDER      69 

graves,  when  provisions  are  stored  in  a  mountain  club- 
hut  for  the  use  of  travelers?  If  there  is  any  need  that 
such  things  should  have  a  representative,  if,  for  instance, 
a  person  takes  them  away  from  the  birds,  the  dead,  or 
the  mountaineer,  then  doubtless  also  an  administrator 
must  be  appointed  legally  to  prevent  such  acts. 

A  discussion  of  the  many  great  and  small  errors  that 
have  been  made  in  regard  to  this  matter  may  be  omitted. 

Animals 

1.  Animals  cannot  be  admitted  into  the  world  of  cul- 
ture as  legal  subjects,  and  a  legal  order  that  should  assign 
to  animals  rights  and  powers  could  not  be  carried  out. 
Animals  themselves  have  no  rights,  that  is  to  say,  they 
stand  outside  the  legal  scheme;  which  is  the  more  natural 
because  our  civilization  cannot  get  on  without  a  constant 
struggle  against  the  animal  world ;  and,  as  the  promotion 
of  culture  is  the  whole  purpose  of  our  existence,  there 
can  be  no  objection  to  our  developing  our  interests  to 
the  full  as  against  the  animal  world. 

2.  But  refusing  to  accord  rights  to  animals  does  not 
mean  that  human  culture  can  permit  them  to  be  ill- 
used.     Refined  culture  is  conscious  of  the  presence  on 
earth  of  other  beings  with  feelings  besides  men,  and 
therefore  it  regards  it  as  mischievous,  if  these  creatures 
are  subjected  to  unnecessary  torture.     This,  too,  gives 
rise  to  the  principle:  suffering  shall  be  inflicted  on  ani- 
mals only  when  cultural  ends  absolutely  require  it.    Our 
culture  must  be  a  culture  of  happiness  to  this  extent, 
that  all  efforts  that  tend  to  reduce  the  state  of  happiness 
must  be  checked,  unless  the  interests  of  culture  demand 
them. 

3.  This  justifies  the  law  against  cruelty  to  animals 
and  all  the  institutions  that  are  connected  with  it ;  also, 
especially,  the  principle  that  all  measures  pertaining  to 


70  TECHNIC   OF   LAW  [Cn.V 

the  better  treatment  of  animals  should  be  promoted  as 
far  as  possible. 

4.  In  accordance  with  this  principle,  animals,  it  is 
true,  can  have  no  rights,  but  their  interests  are  a  proper 
object  for  foundations;  the  fund  being  the  property  of 
the  juristic  person,  but  the  proceeds  being  directed 
toward  benefiting  the  animals.  Thus  it  is  with  the 
fund  for  swans  (Hamburg) ;  for  the  preservation  of 
buffaloes  (New  York) ;  the  care  of  sick  animals  (India) , 
etc. 

Objects  of  Rights 

1.  Rights  require  a  legal  subject  and  a  legal  object. 
Legal  objects  may  be  things  or  persons.     They  may 
also  be  forces,  connected  with  things,  but  yet  controlled 
as    something   separate,    like    electricity    for    example. 
That  it  is  much  the  same  in  respect  to  running  water  will 
be  explained  below.     They  also  may  consist  of  immaterial 
things;    thus,  ideas  of  all  kinds,  from  which  advantage 
may  be  derived  in  a  certain  way,  and  which  therefore 
become  objects  in  the  realm  of  economics;    hence,  we 
speak  of  rights  in  immaterial  things. 

2.  Rights  in  persons,  again,  may  be  rights  in  one's 
own  body  and  rights  in  other  persons.     Peculiar  to  both 
is  this:  that  the  rights  can  only  extend  so  far  that  the 
person  still  remains  a  person;   that  is  to  say,  is  still,  at 
the  same  time,  recognized  and  protected  as  a  legal  sub- 
ject.    This  is  fully  dealt  with  in  my  "Einfuhrung"  and 
in  my  "Lehrbuch  des  biirgerlichen  Rechts,"  and  cannot 
be  treated  in  detail  here  because  we  cannot  do  more  than 
indicate  the  broad  outlines  of  legal  technic. 

3.  The  totality  of  things  to  which  a  person  is  entitled 
is   called    property;     hence,  property   may   consist   of 
material  things,  immaterial  things,  and  also  of  persons 
in  as  far  as  they  are  affected  by  creditors'  rights. 

4.  This  totality,  however,  is  not  to  be  regarded  as  a 


§8]   RIGHTS  AND  THE  CULTURAL  ORDER     71 

new  proprietary  whole,  as  if  everything  formed  one 
single  object,  thus  making  a  new  legal  object.  To  treat 
it  in  this  way  would  be  contrary  to  the  rules  of  legal 
technic,  and  would  make  it  a  source  of  great  uncertain- 
ties. If,  for  example,  an  object  does  not  belong  to  me, 
but  is  treated  as  a  part  of  my  property,  this  might  lead 
to  the  most  inconsequent  results  and  difficult  conflicts. 
5.  But  this  does  not  prevent  property,  as  the  sum 
total  of  all  proprietary  objects,  from  having  a  certain 
significance,  for, — 

(a)  The   comprehensive   term   is   of   importance   in 
cases  where  property  is  transferred  among  the  living 
or  on  account  of  death;  a  transfer  in  which  "property" 
is  named  as  the  object  of  the  transfer,  embraces  of  itself 
all  the  property  known  and  unknown,  taking  into  con- 
sideration the  debts. 

(b)  It  is  important  in  cases  of  liability  for  debt;  for 
since  this  has  changed  from  liability  of  the  person  to 
liability  of  property,  the  property  as  a  whole  is  of  impor- 
tance in  as  far  as  the  liability  attaches  to  all  the  property 
both  known  and  unknown. 

(c)  It  may  happen  that  one  person  is  the  holder  of 
several  objects  of  ownership  and  that  these  objects  may 
suffer  different  fates.     In  such  cases  the  principle  of 
substitution    (Ersatzgmndsatz)   may    be  applied;    that 
is,  one  object  out  of  the  property  A  may  be  substituted 
for  another.     What  is  substituted  takes  the  place  of  the 
original ;  this  principle  [of  alternative  obligation]  I  have 
already  discussed  elsewhere.1 

2.    General  Rights  and  Limited  Rights  (Vollrecht  und 

Teilrecht) 

(a)     Servitudes  (Substanzrecht). 

1.     Wherever  there  are  rights,  there  too  is  found  the 
division  between  general  and  limited  rights  [jura  in  re 

i  "Archiv  fur  burgerliches  Recht,"  XX,  p.  1  ff. 


72  TECHNIC   OF   LAW  [Cn.  V 

propria,  and  in  re  aliena}.  It  is  found  in  the  sphere  of 
the  law  of  things,  both  material  and  immaterial,  and  also 
in  the  law  of  obligations  (Forderungen) .  Everywhere 
we  come  upon  the  difference  between  servitudes  (Sub- 
stanzrecht)  and  securities  (Wertrecht). 

Hence,  there  are  general  rights  in  things  as  there  are 
general  rights  in  claims  (Forderungen) ;  limited  rights  in 
the  one,  as  there  are  in  the  other;  and  thus,  too,  there  are 
servitudes  (Substanzrechf) ,  and  securities  (Wertrecht). 

2.  A  systematic  presentation  must  therefore  make 
clear  the  difference  between  general  and  limited  rights, 
and  between  the  different  kinds  of  general  rights  without 
reference  to  the  kind  of  rights  in  question. 

This  has  hitherto  been  regularly  neglected,  and  the 
difference  between  general  and  limited  rights  has  first 
been  developed  in  the  law  of  material  things ;  and  in  this 
connection  ownership,  usufruct,  pledge  rights  have  been 
spoken  of.  These  categories  have  then  been  transferred 
to  other  kinds  of  values  (Giiterarten) ,  especially  to  claims 
(Forderungen).  This  has  led  to  serious  errors  in  method. 
It  was  thought  that  if  pledge  rights  in  material  things 
belonged  to  the  law  of  material  things,  pledge  rights 
might  always  be  treated  as  rights  in  such  property,  and 
so  with  usufruct.  A  more  correct  view  of  the  matter 
would  be  on  the  contrary:  usufruct,  pledge  rights,  etc., 
are  neither  rights  in  material  things  nor  obligation 
rights  (Forderungsrechte) ,  nor  immaterial  rights  (Imma- 
terialrechte) ,  but  signify  a  definite  degree  and  a  definite 
kind  of  limited  title  (Berechtigung),  which  may  occur  in 
relation  to  proprietary  objects  of  all  kinds,  and  their 
correlate  is  not  either  ownership,  obligation  rights,  or 
patent  rights,  but  general  rights. 

3.  This  does  not  prevent  limited  rights  in  reference 
to  material  things  from  evidencing  certain  peculiarities 
of  the  law  of  material  things;    and  it  is  just  so  with 


58]     RIGHTS  AND  THE  CULTURAL  ORDER      73 

limited  rights  in  immaterial  things,  and  in  obligations. 
Hence,  there  is  no  absolute  error  in  discussing  them  in 
connection  with  the  corresponding  branches  of  the  law. 
Only  it  must  always  be  borne  in  mind  that  in  dealing 
with  usufruct  in  relation  to  material  things,  to  obliga- 
tions, to  inventions,  and  with  pledge  rights  in  material 
things,  etc.,  we  are  not  concerned  with  the  same  right 
but  with  entirely  different  rights,  which  are  alike  only  in 
that  they  stand  in  a  definite  relation  to  the  general 
right;  for  their  qualification  is  expressed  in  this,  that 
the  law  of  things,  material  and  immaterial,  and  the  law 
of  obligations  have  a  special  character  in  a  certain  degree 
and  in  a  certain  way. 

4.  The  essence  of  limited  rights  is  this,  that  they 
embrace  a  part  of  the  powers  of  general  rights  but  still 
leave  a  residuum  to  the  owner  who  stands  in  the  back- 
ground. 

If  the  separation  had  been  made  permanent,  a  dis- 
memberment of  the  right  would  have  resulted.  And 
this  in  turn  would  have  involved  the  greatest  difficul- 
ties if  later  one  of  these  limited  rights  lapsed,  so  that  the 
original  general  right  would  be  partially  existent,  partially 
non-existent.  Most  nations  have  avoided  these  diffi- 
culties by  means  of  the  ingenious  idea  that  these  limited 
rights  should  not  form  a  permanent  section  cut  out  of 
the  general  right,  but  should  merely  be  superimposed 
on  it ;  so  that,  as  long  as  the  limited  right  exists,  the  gen- 
eral right  is  encumbered  with  it,  but  as  soon  as  the 
limited  right  expires,  the  general  right  immediately 
regains  its  complete  scope.  Therefore  the  cutting  of  a 
section  out  of  the  general  right  has  not  resulted  in  a 
permanent  reduction  and  curtailment  of  the  general 
right,  but  on  the  contrary,  it  has  been  made  possible  for 
this  right  to  return  to  its  former  condition,  to  "con- 
solidate." 


74  TECHNIC  OF  LAW  [CM.  V 

Such  a  consolidation  may  also  occur  if  the  holder  of 
the  limited  right  is  also  the  holder  of  the  general  right. 
But,  in  such  a  case,  the  consolidation  conforms  to  jus- 
tice only  under  certain  preliminary  conditions;  that  is, 
if  neither  of  the  rights  loses  by  the  consolidation.  If  this 
is  the  case,  however,  both  rights  continue  to  exist  until 
the  limited  right  expires  or  until  conditions  have  changed 
so  that  it  is  no  longer  necessary  to  maintain  the  two 
rights  separately.2 

This  idea  is  in  accord  with  reason.  What  rational 
ground  could  there  be,  when  rights  concur,  for  diminish- 
ing one  of  them?  And  yet  it  was  long  before  this  came 
to  be  recognized. 

5.  This  instrument  of  juristic  technic  is  very 
important;  for  it  makes  it  possible  for  ownership  to 
branch  out  in  various  directions  without  danger  of 
property  becoming  ownerless,  which  would  be  the 
case  if  only  a  temporary  and  passing  right  were 
attached  to  it. 

On  the  other  hand,  the  value  of  this  technic  must 
not  be  overestimated.  It  must  not  be  assumed  that  it 
is  the  only  proper  and  acceptable  one;  for  it  is  quite 
conceivable  that  a  legal  system  might  allow  a  general 
right  to  a  thing  with  certain  restrictions  (beschrdnktes 
Vollrecht),  and  that  should  the  contingency  denned  by 
the  restrictions  arise,  it  should  annul  the  right,  and 
declare  that  no  right  to  the  thing  exists.  In  such  a 
case,  where  there  is  nothing  behind  the  right,  it  is 
irrational  to  deny  it  the  character  of  a  general  right  of 
ownership;  for  then  it  is  a  general  right  of  a  qualified 
nature,  subject  to  being  divested.  But  it  is  expedient 
to  avoid,  as  far  as  possible,  this  "ownerlessness" ; 
hence,  so  to  arrange  the  construction,  that  a  general 

1  Compare  my  "Gesammelten  Abhandlurgen  aus  dem  romischen  und 
franzosischen  Zivilrecht,"  respectively  1883  and  1877,  p.  295. 


§  8  ]     RIGHTS  AND  THE  CULTURAL  ORDER      75 

right  exists  behind  the  qualified  right,  which,  when  the 
latter  ceases  to  be,  "consolidates."  It  is  not  a  necessity 
of  Natural  Law  to  accept  this,  but  it  is  a  useful  idea,  and 
one  that  promotes  cultural  order. 

1  ypes  of  Limited  Rights 

1.  In  the  life  of  nations  limited  rights  of  a  highly 
personal  nature  are  common,  that  grant  to  an  individual 
during  his  life-time  certain  powers,  and  in  particular 
that  allow  him  the  use  of  a  thing  in  order  to  provide 
him,  as  long  as  he  lives,  with  certain  advantages  and  to 
secure  to  him  the  means  of  living  in  comfort.     Such  rights 
have  an  economic  function  similar  to  annuities;  except 
that  they  grant  the  benefit  to  the  individual  directly  and 
not  through  the  medium  of  the  law  of  obligations. 

2.  Such  personal  limited  rights  are,  first  of  all,  usu- 
fruct and  usufructuary  family  rights.     It  is  a  matter  of 
surrendering  to  some  one  temporarily  the  possibility  of 
receiving  the  proceeds  of  a  legal  advantage  (Rechtsgut). 
This  may  be  done  in  two  ways:  either  so  that  the  usu- 
fructuary himself  draws  the  emoluments  directly  from 
the  object;   or  so  that  the  object  is  administered  by  a 
third  person  who  delivers  the  net  proceeds  to  the  usu- 
fructuary.   The  former  is  the  most  usual  method,  the 
underlying  idea  being  that  the  individual  with  a  right 
shall  exercise  the  right  himself.     But  the  notion  that 
a  temporary  possibility  of  using  the  proceeds  of  a  thing 
may  be  made  the  object  of  a  right,  while  what  is  called 
the  economic  substance,  that  is,  the  fundamental  force 
(Grundkraft)  of  the  thing,  still  belongs  to  the  holder  of 
the  original  right,  is  so  rational  that  it  developed  inde- 
pendently in  the  different  systems  of  law.     Thus  we 
have  the  Roman  usus  fructus,  the  German  life  pension 
(Leibzucht) ;  it  is  an  almost  indispensable  factor  in  civil 
life.     The  usufruct  may  be  of  particular  importance 


76  TECHNIC  OF  LAW  [CH.V 

when  it  relates  to  a  whole  estate;  in  which  case  the 
usufructuary  must  be  given  a  certain  right  of  disposal 
to  some  objects,  because  without  such  a  right  the 
administration  of  an  estate  is  inconceivable.  Family  law 
especially,  in  many  cases  shows  instances  where  members 
of  the  family  are  granted  temporarily  such  a  right  of 
usufruct  (Ertragsrechf) ,  supplementary  to  the  power  of 
personal  control  of  the  family.  (Compare  p.  110.) 

3.  Such  a  section  cut  out  of  the  general  right  may  also 
be  so  constituted  that  it  attaches  to  the  personality  of 
the  entitled  subject.  This  may  be  accomplished  in 
either  of  two  ways: 

(a)  So  that  the  holder  of  the  right  receives  something 
in  addition  to  the  proceeds,  in  particular  the  privilege  of 
selling  the  thing  or  part  of  it;  this  is  the  case  in  what  is 
called  Verfugungsniessbrauch;  for  example,  the  life 
pension  (Leibzucht)3  in  German  law. 

(&)  Sometimes,  however,  the  personal  relation  is 
such  that  the  holder  of  the  right  receives  less  than  the 
full  proceeds;  namely,  only  as  much  income  as  is  neces- 
sary for  his  personal  maintenance ;  and  in  special  cases  a 
person  may  have  the  right  of  residence  in  a  dwelling 
house  as  far  as  he  needs  it  for  his  own  personal  use. 
In  contrast  to  this,  is  the  usufruct  of  rights  which, 
though  connected  with  a  person,  grants  him  a  right  of 
enjoyment,  limited  not  subjectively  but  objectively, 
that  is  to  say,  according  to  the  income  that  a  property 
brings  in  regularly.  This  usufruct  has  this  advantage, 
that  the  beneficiary  is  provided  for,  over  and  above  the 
mere  necessaries  of  life,  and  that  the  question,  what  is 
necessary  for  maintenance  and  what  is  not,  does  not 
arise,  a  question  that  frequently  leads  to  the  most 
painful  discussions. 

•  Another  case  of  usufruct  in  property  has  just  been  mentioned.  I 
first  developed  the  whole  legal  structure  of  the  "Verfugungsniessbrauch" 
in  the  "Jahrbiicher  fiir  Dogmatik,"  XXIV,  p.  187. 


§  8  ]     RIGHTS  AND  THE  CULTURAL  ORDER      77 

4.  A  special  kind  of   title    (Berechtigung)    allows   a 
person  the  use  of  a  legal  object  (Rechtsgut),  but  not  an 
exclusive  right  to  it;    so  that  others  may  be  granted 
a  similar  use.     His  interest  might  thus  become  very  frail 
were  it  not  that  the  proceeds  of  certain  things  are  so 
large  that  a  number  of  such  rights  of  usufruct  can  exist 
in  common  without  the  interest  of  one  shrinking  to  a 
shadow.     Especially   as   regards   rights   in   immaterial 
things  such  non-exclusive  rights,  so-called  license  rights 
(Lizenzrechte) ,  are  very  common;   but  it  is  quite  con- 
ceivable that  they  may  exist  in  respect  to  other  things, 
for  instance,  quarries,  mines,  and  so  forth. 

5.  There  is  still  another  kind  of  limited  right  which 
is  thus  characterized :  the  holder  of  the  limited  right  has 
the  privilege  of  using  the  legal  object  for  the  purpose  of 
fulfilling  at  the  same  time  certain  duties  towards  the 
holder  of  the  general  right.     Thus,  on  one  side,  this 
segment  taken  from  the  general  right  imposes  a  legal 
encumbrance  on  the  holder  of  the  general  right,  while, 
on  the  other  hand,  it  renders  him  the  service  performed 
by  the  holder  of  the  limited  right.     German  law  with 
its  usual  genius  has  grasped  the  separateness  of  these 
rights.     Thus,  it  was  possible  for  what  are  called  feudal 
rights  to  originate ;  the  vassal  receiving  certain  rights  in  a 
landed  property,  with  the  obligation  to  render  certain 
services  to  his  lord.     The  underlying  idea  here   was 
that  the  proceeds  of  the  property  should  make  it  possible 
for  him  to  maintain  his  position,  and  to  give  his  full 
measure  of  service  to  the  feudal  owner.     This  type  of 
limited  right  is  found  today  in  the  right  of  publication 
( Verlagsrecht) ,    the  publisher  receiving  rights  of    user 
(Benutzungsrechte)  in  an  immaterial  thing;4   to  the  end 
that  he  may  bring  the  latter  before  the  public,  and  thus 

4  With  those  who  do  not  agree  with  me  in  regard  to  this  parallelism  of 
rights  (compare  "Autorrecht,"  p.  290),  I  do  not  care  to  argue  further. 


78  TECHNIC    OF   LAW  [Cn.  V 

work  for  the  advantage  of  the  individual  who  is  entitled 
to  the  immaterial  thing.  The  most  typical  example  is 
the  publication  of  writings,  but  the  same  thing  has  also 
been  developed  in  other  rights  in  immaterial  things;  for 
instance,  rights  in  patents  of  invention,  and  even  in  the 
sphere  of  the  law  of  material  things,  it  is  quite  conceivable. 

6.  The  rights  within  the  general  right  are  often  so 
constituted  that  they  almost  exhaust  the  latter,  and 
leave  to  its  holder  only  certain  rights  of  supervision 
(Aufsichtsrechte),  or,  it  may  be,  certain  profits  which 
are  not  connected  with  the  law  of  obligations  in 
character,  but  are  based  on  the  object.  Such  rights  are 
especially  common  in  the  law  of  material  things  (Sach- 
enrecht)  and,  especially,  landed  property;  they  are 
principally  the  result  of  bondage-conditions  (Horigen- 
Verhdltnisse)  arising  from  the  fact  that  slaves,  or  the 
[so-called]  half-slaves  were  allowed  to  live  on  the  soil 
and  to  remain  settled  on  the  land  with  their  families 
(p.  93  (5)),  or  from  the  fact  that  a  tenant  who  would 
otherwise  have  lived  on  the  land  only  for  a  number  of 
years,  was  granted  a  permanent  right. 

These  conditions  have  become  of  the  greatest  possible 
economic  and  cultural  importance;  for  owing  to  them 
a  more  or  less  prosperous  peasant  or  farmer  class  (Bauern- 
stand)  has  been  able  to  develop,  attached  to  the  soil, 
and  thus  forming  a  strong  main  stock  of  the  population. 
As  time  went  on,  the  feeling  of  independence  became 
more  and  more  pronounced,  and  the  effort  to  cut  loose 
from  the  owner  continued  to  grow  in  power.  Thus  it 
was  finally  achieved  that  the  right  of  ownership  re- 
ceded in  importance,  and  that  in  this  way  a  free  class 
of  rural  inhabitants  grew  up. 

(6)     Securities.     (Wertrechte) 

1.  Of  an  entirely  different  type  are  the  rights  that 
are  called  securities  (Wertrechte);  the  peculiarity  of 


§8]    RIGHTS  AND  THE  CULTURAL  ORDER      79 

which  consists  in  this,  that  the  person  who  is  entitled 
to  the  security  has  the  power  to  exercise  a  right  fully 
or  partially  in  order  to  obtain  from  it  a  certain  security 
limited  by  the  right,  and  with  the  attainment  of  which 
the  right  ends.  These  are  rights  which  do  not  aim  to 
bring  out  the  intrinsic  usefulness  of  objects  in  their 
economic  significance.  Their  sole  purpose  is  to  draw  a 
certain  money  value  either  from  the  use  or  the  sub- 
stance of  a  thing. 

2.  The  consequence  is  that  the  concrete  nature  of 
the  thing  recedes  and  the  abstract  advances;    it  no 
longer  comes  under  consideration  as  a  separate  useful 
entity,  but  as  a  means  of  security  (Wertwesen) ;  so  that 
things  susceptible  of  the  most  different  uses  serve  one 
and  the  same  end,  that  is,  the  realization  of  value. 

3.  These  rights  of  security  have  this  great  impor- 
tance, that  they  break  up  the  rigidity,  especially  the 
immobility  of  property  and  lend  elasticity  to  the  whole; 
in  particular,  by  drawing  out  of  immovables  the  value 
that  is  in  them,  they  endow  them  with  cultural  signi- 
ficance, and  by  virtue  of  the  uniformity  of  value,  uni- 
versalize the  particularities  of  the  individual  objects.5 
This  appears  from  the  following: 

4.  Value  may  be  used  for  thousands  of  things,  but 
chattels,  land  and  animals  can  generally  be  used  only 
for  certain  purposes.    Hence,  it  is  necessary  to  convert 
the  particular  utility  into  an  abstract  monetary  value, 
so  that  the  thing  can  be  of  use  wherever  a  monetary 
value  is  required  to  stimulate  any  speculation,  or  to 
satisfy  a  monetary  need.     In  this  way,  an  object  that 
would  otherwise  be  fit  for  only  five  or  six  purposes,  can 
be  made   useful   for   hundreds  of   purposes.      By   this 

« I  first  developed  the  idea  of  "Wertrecht"  in  the  "Archiv  fUr  civ. 
Praxis,"  vol.  91,  p.  155.  Of  course,  my  explanations  met  with  vehement 
contradiction.  It  would  be  useless  to  dispute  the  matter  further. 


80  TECHNIC  OF  LAW  [CH.  V 

device,  all  the  thousands  and  thousands  of  proprietary 
objects  can  be  brought  under  one  denominator,  and 
thus  can  be  equally,  and  independently  of  their  various 
intrinsic  uses,  directed  toward  the  most  different  ends. 
It  is  as  if  money  flowed  in  the  veins  of  the  thing,  and  a 
stream  of  money  proceeded  out  of  it.  Hence  security 
rights  belong  to  the  greatest  achievements  of  humanity. 
The  most  important  of  these  security  rights,  the 
pledge,  will  be  dealt  with  in  the  theory  of  obligatory 
relations  (Schuldverhallnisse)  (p.  152). 


SECTION  IX 
II.    PERSONALITY  AND  THE  ACTIVITY  OF  THE  PERSON 

1.  Rights  in  one's  own  person,  or  rights  of  personality, 
must  be  the  starting  point  of  every  legal  system;    for 
every  right  requires  a  legal  subject  and  whoever  is  a 
legal  subject  must,  as  a  personality,  have  the  protec- 
tion of  the  law.    This  applies  to  both  physical  and  juris- 
tic persons.    Hence,  whoever  seeks  to  hinder  the  activity 
of  personality  in  the  sphere  allowed  by  law  infringes 
the  right  of  personality,  and  must  be  restrained. 

2.  This  right  of  personality  expresses  itself  in  par- 
ticular in  the  activities  of  the  personality  both  in  and 
outside  the  law.     Personality  must  be  permitted   to 
be  active,  that  is  to  say,  to  bring  its  will  to  bear  and 
reveal  its  significance  to  the  world;    for  culture  can 
thrive  only  if  persons  are  able  to  express  themselves, 
and  are  in  a  position  to  place  all  their  inherent  capacities 
at  the  command  of  their  will. 

We  say  that  a  person  has  the  capacity  to  perform 
juristic  acts,  to  make  wills,  but  also  that  he  has  the 
capacity  to  walk,  to  ride  or  to  produce  immaterial 
values;  but  these  are  not  special  rights,  they  are  per- 


§9]          PERSONALITY  AND  ACTIVITY  81 

sonal  powers,  and  whoever,  without  the  consent  of  the 
law,  seeks  to  hinder  their  exercise  infringes  the  right  of 
personality. 

3.  Consideration  may  be  taken  here,  too,  of  the  mani- 
festation of  the  person  as  against  the  State,  whether 
it  be  in  legal  procedure,  in  administration,  or  in  his 
capacity  as  an  organ  of  government ;  all  these  are  capa- 
cities that  arise  out  of  the  right  of  personality,  and  that 
exist  as  long  as  the  principle  holds  that  personality  may 
develop  itself. 

4.  In  this  way,  especially,  activities  of  the  person  in 
public  law  have  a  mainstay  in  the  right  of  personality; 
they  are  the  expansion  of  the  powers  contained  in  that 
right,  and  the  latter  is  their  uniform  source.     It  is  a 
mistake  to  split  them  up,  and  divide  them  into  separate 
single  rights;  and  it  is  contrary  to  the  fundamental  legal 
idea  of  the  unity  of  personality  with  all  its  separate 
powers,  constituting  a  cultural  entity  which  may  assert 
itself  in  the  most  various  directions. 

5.  This  compression  into  one  right  of  personality, 
of  all  the  activities  of  the  person,  especially  those  in- 
volved in  public  law  and  political  life,  is  the  key  to  the 
whole  conception  of  political  rights.    There  is,  indeed, 
another  view,  that  looks  upon  the  individual  as  acting 
as  an  organ  of  the  whole,  to  which  we  shall  return  later. 
The  acceptation  of  anything  else  as  the  basis  of  political 
rights  is  absurd. 

6.  Juristic  persons  also  have  rights  of  personality, 
but  in  still  another  direction.    The  juristic  person  has 
as  its  members  the  individuals  that  are  connected  with 
it,  so  that  these  individuals  have,  in  part,  rights  in  the 
profits,  and,  also,  in  part,  in  the  administration  and 
activity  of  the  juristic  person.     In  the  latter  connection, 
we  speak  of  the  rights  of  representation  (Organschafts- 
rechten),  and    understand    under   these    the    capacities 


82  TECHNIC   OF   LAW  [Cn.  V 

that  the  individual  has  to  participate  in  the  conduct  of 
the  juristic  person  and  in  all  its  vital  functions.  This 
right  is  a  personal  one  and  is  derived  from  the  juristic 
person,  but  it  is  assigned  to  the  individual  and  is  merged 
in  the  latter's  personality  as  long  as  he  stands  in  a  definite 
relation  to  the  juristic  person.  This  point  is  more  fully 
explained  in  the  "Lehrbuch  des  burgerlichen  Rechts," 
to  which  we  refer. 

7.  The  activity  of  the  person  may  be   in  lawful 
acts  (Rechtshandlungeri) ,  or  illegal  acts  (  Unrechtshand- 
lungen),  or  in  neutral  action.     In  lawful  acts,  it  is  essential 
that  the  person,  as  a  servant  of  the  legal  order,  should 
strive  to  bring  about  some  change  in  the  position  of 
things.     It  is  characteristic  of  such  acts,  that  they  re- 
quire a  certain  maturity  of  the  person;  hence  we  distin- 
guish between  persons  capable  of  acts,  and  those  incapable 
of  acts.     It   also   sometimes   occurs   that    there    is  a 
medium  between  these  two,  the  restriction  or  limitation 
of  acts.     Moreover,  lawful  acts  have  this  in  common, 
that  the  human  will  and  the  law  co-operate ;  the  human 
will  giving  the  direction,  on  the  one  hand,  and,  on  the 
other,  the  law  achieving  the  fuller  development  of  what 
arises  in  the  legal  order  by  reason  of  this  will.     This 
combination  of  the  human  will  and  the  law  is  not  only 
the  peculiarity  of  these  legal  acts,  but  also  their  most 
interesting  phase. 

8.  Used  in  this  sense,  the  will  is  not  to  be  taken  as 
meaning  the  internal  will,  but  the  will  that  is  active  in  the 
external  world.     It  is  the  law,  however,  that  achieves 
those  results  that  appear  to  be  especially  suited,  on  the 
one  side,  to  serve  the  freedom  of  human  will,  and,  on 
the   other,   the  welfare  of   the   whole.     Of   particular 
importance  in  this  connection  are  the  following  prin- 
ciples : 

(a)     Man's  will  must  not  be  undervalued;    for  only 


§9]          PERSONALITY  AND  ACTIVITY  83 

if  it  possesses  an  important  power  in  the  law  can  per- 
sonality expand,  and,  through  this  development  of 
individual  personality,  the  full  force  of  humanity's 
powers  be  made  effective. 

(6)  The  social  element,  however,  must  also  be  con- 
sidered, especially  in  connection  with  those  transactions 
which  in  their  external  operation  are  important  as  affect- 
ing a  multiplicity  of  vital,  general  interests.  If  here 
one  and  the  same  transaction  affects,  not  only  one,  but 
several  persons,  it  is  best  that  not  only  the  individual 
will  should  be  considered,  but,  above  all,  the  meaning 
which  such  declaration  of  the  will  receives  in  ordinary 
usage;  for  the  course  of  dealing  may  justly  claim  that 
whoever  participates  in  it  must  yield  to  it,  and  that  its 
declarations  be  understood  in  accordance  with  the 
general  custom. 

(c)  Good  faith  must  be  preserved  in  all  directions; 
that  is  to  say,  the  general  custom  must  be  interpreted 
as  the  declarations  of  an  honest  man,  without  reserva- 
tions, as  commonly  understood.     In  particular,  it  must 
be  assumed  that  if  anyone  grants  something  he  also 
grants  everything  that  is  necessary  to  carry  out  the 
first  thing;   and  we  must  be  able  to  depend  on  it,  that 
whoever  consents  to  anything,  will  not  put  obstacles  in 
the  other's  way  if  the  latter  wishes  to  enjoy  the  promised 
advantages;    especially,  we  must  have  confidence  that 
if  one  gives  a  promise,  he  will  not  seek  to  render  it  vain 
by  crooked  ways  and  underhand  means. 

(d)  Otherwise,  the  law  is  free  to  attach  those  legal 
consequences  that  seem  good  to  it  to  juristic  acts,  with- 
out being  slavishly  bound  to  the  wills  and  opinions  of 
the  parties ;  in  the  first  place  it  can  strive  to  further  cer- 
tain results,  to  prevent  others,  and  to  bring  about  such 
a  situation  in  legal  life  that  all  interests  are  reconciled 
as  far  as  possible. 


84  TECHNIC  OF  LAW  [Cn.V 

9.  In  earlier  times  people  failed  to  understand  that 
the  legal  establishment  is  an  intricate  structure  under 
which  the  most  various  elements  must  be  able  to  develop ; 
and  here,  as  well  as  elsewhere,  it  was  thought  possible 
to  control  a  whole  mass  of  cultural  phenomena  with  a 
single  principle.  This  shows  the  desperate  condition 
of  earlier  jurisprudence;  it  might  be  compared  to  a 
technic  that  operated  with  hour-glasses,  while  we  have 
our  chronometers.  For  this  reason,  twenty  years  ago 
my  statements  were  assailed  and  criticised,  while  today 
no  one  would  hold  to  the  antiquated  theories. 


SECTION   X 

III.     CLAIMS     (Anspruch) 

1.  To  the  right  corresponds  the  claim,  that  is,  the 
power  to  call  upon  another  to  perform  something.     The 
theory  of  claims  will  not  be  discussed  here,  since  it 
belongs  especially  to  the  technic  of  the  law;    but  one 
point  must  be  made  clear:    a  claim  exists  only  where 
there  is  a  definite  power  on  one  side,  and  a  definite 
obligation  on  the  other,   and  when,  therefore,  a  person 
may  be  called  upon,  because  of  this  obligation,  to  act 
in   the  other's  interests.     Hence,   a   claim   requires   a 
special  relation  which  has  been  brought  about  as  regards 
this  person  by  virtue  of  a  legal  process  (Rechlsvorgang). 
Only  if  thus  understood  is  the  conception  of  the  claim 
productive;  only  thus  does  it  aid  in  clarifying  the  theory 
of  the  law. 

2.  At  the  present  time,  it  is,  indeed,  grossly  mis- 
understood, and  no  other  term  has  been  more  misinter- 
preted.    Most  misleading  of  all  are  the  following  errors: 

(a)     The  belief  that  an  owner  has  a  "universal  claim" 
against  everyone   "not  to  be  molested."     This  is  the 


§10]  CLAIMS  85 

most  unproductive  idea  possible:  a  legal  significance 
attaches  in  granting  a  claim  when  someone  has  been 
injured,  a  claim  that  the  disturbance  cease;  but  as  long 
as  one  has  not  been  molested,  he  must  in  turn  leave  the 
world  unmolested,  and  the  idea  of  a  claim  against  an 
innocent  passer-by  who  has  not  disturbed  one  at  all  is 
monstrous. 

(6)  It  is  equally  absurd  to  suppose  that  individuals 
have  a  claim  against  the  State  requiring  it  to  do  every- 
thing possible  for  them,  in  particular  to  aid  them  in 
obtaining  their  rights.  If  the  State  performs  its  duty, 
that  is  its  reason  for  being;  if  the  individual  is  entitled 
to  turn  to  the  State,  and  the  organs  of  the  State  are 
maintained  for  the  purpose  of  acting  on  his  motion, 
there  we  have,  on  one  side,  the  exercise  of  the  right  of 
personality,  and  on  the  other,  the  duty  of  the  organs  of 
the  State  toward  the  people  as  a  whole ;  that  is  to  say, 
they  are  active  in  the  interests  of  all,  as  well  as  of  the 
individual.  To  recognize  a  claim  in  such  a  case,  a 
claim,  moreover,  of  any  person  against  any  State,  again 
is  an  entirely  false  interpretation  of  the  idea  of  the 
claim,  which  is  by  no  means  rare  among  writers,  because 
they  use  the  word  claim  without  having  assigned  a 
definite  conception  to  it.  This  is  due  to  the  lack  of 
juristic  method  and  discipline,  which,  it  must  be  admit- 
ted, in  view  of  the  present  state  of  philosophic  education, 
is  just  as  little  striking  as  the  self-glorifying  superiority 
which  it  was  thought  necessary  to  assume  toward  me, 
in  announcing  such  important  teachings  to  the  world. 
I  have  no  reason  to  enter  further  into  such  wrong-headed 
and  unsettled  misinterpretations;  for,  because  I  rejected 
the  claim  to  legal  protection  (Rechtsschutzanspmck), 
it  was  declared  that  I,  the  defender  of  the  parliamen- 
tary system  of  government,  was  an  exponent  of  the 
absolute  State.  I  consider  it  superfluous  to  make  any 
answer  to  such  a  statement. 


86  TECHNIC   OF  LAW  {CH.V 

SECTION  XI 

IV.    LEGAL  ORDER 

1.    Sources  of  the  Law 

1.  The  means  by  which  a  legal  system  brings  the 
law  into  form  are  called  sources  of  law.    They  appear 
fn  the  unconscious  organization  of  the  nation,  and  in  its 
conscious  decrees,  which  first  sprang  from  the  law  of 
the  chief  —  in  laws. 

2.  The  difference  between  customary  law  (Gewohn- 
heitsrechf)  and  a  law  (Gesetz)   is  not  an  absolute  one. 
A  great  deal  of  customary  law  will  creep  into  the  inter- 
pretation of  the  laws,  while,  on  the  other  hand,  in  many 
directions,  the  laws  will  determine  customary  law. 

3.  A  fuller  exposition  is  given  elsewhere  ("Lehrbuch 
des  burgerlichen  Rechts",  I.  p.  78  f.,  85  f.). 

2.    Equity  and  Law 

1.  As  far  as  possible,  the  law  must  be  so  constructed 
that  it  is  elastic  enough  to  meet  the  just  requirements 
of  the  individual  case,  in  order  to  avoid  a  disagreement 
between  the  technically  logical  result,  and  the  ethically 
juristic  requirements.  Even  Aristotle,  as  long  ago  as 
in  his  time,  dealt  with  this  contradiction.  He  speaks  — 
in  the  fifth  book  of  the  Nicomachsean  ethics — of  equity 
and  law,  and  declares  that  equity  bursts  forth  when 
the  law  with  its  average  principles  leads  to  a  result 
at  variance  with  the  idea  of  justice. 

This  disagreement  may  be  avoided  in  several  ways. 
A  special  law  of  equity  (Billigkeitsrecht}  may  be  estab- 
lished, which,  however,  becomes  in  turn  logically  for- 
malized law,  and,  therefore,  is  inadequate  to  fit  all 
cases;  for,  as  soon  as  it  envelopes  itself  in  the  form  of 
logical  law,  it  too  suffers  the  fate  of  being  insufficient, 
in  the  ramifications  of  its  ideas,  to  the  demands  of 


§11]  LEGAL  ORDER  87 

justice.  Or  the  expedient  may  be  adopted  of  framing 
legal  judgments  so  elastically  that  they  are  able  to 
meet  the  demands  of  the  individual  case. 

The  former  method  was  represented  in  earlier  legal 
systems  (Roman  law,  English  law);  the  latter  is  what 
our  modern  legal  structure  is  striving  towards. 

2.  This  is   not  feasible  everywhere,   however;     the 
determination  of  the  law  frequently  requires  that  finer 
points  and  adaptable  suppleness  give  way  to  a  certain 
coarsening  in  the  interest  of  greater  facility  in  handling 
it.    The  law  must  be  recognized  and  applied  not  only 
by  the  judge,  but  also  by  the  people  in  their  activities; 
hence,  it  is  often  undesirable  that  it  should  develop 
in  conformity  to  criteria  that  are  difficult  to  perceive 
and  to  comprehend.    However  much  it  may  offend  the 
finer  senses  of  the  jurist,  coarse  forms  must  sometimes 
be  allowed  to  take  the  place  of  delicate  ones,  because 
the  latter  would  perish  beneath  the  strong  breath  of  life. 

This  has  already  been  dealt  with  above,     (p.  30  (5).) 

3.  Such  a   coarsening  (Vergroberung)  is   also  especi- 
ally necessary,  because  the  law  forms  a  part  of  human 
life,  and  disagreements  in  the  law  exasperate  the  people 
and  sow  the  seeds  of  discord.     Consequently,  if  the 
law  is  so  constructed  that  hundreds  of  disputes  can  be 
avoided,  it  is  of  great  benefit;    and  a  system  of  law 
that  inclines  in  this  direction  is  better  than  a  nicely  exact 
system  that  constantly  involves  the  people  in  quarrels 
and  conflicts. 

3.    Dual  System  of  Acquiring  Legal  Rights 

1.  Not  seldom  a  double  legal  order  is  necessary, 
when  certain  persons  who  deal  with  another  must  be 
treated  as  if  they  were  dealing  with  the  truly  entitled 
subject  (Berechtigte)i  even  if  the  person  with  whom 
they  have  made  or  disputed  an  agreement  was  not  the 


88  TECHNIC  OF  LAW  [Cn.V 

entitled  subject.  It  is  very  often  necessary  that  certain 
persons  should  carry  the  badge  of  title  (Berechtigungs- 
zeichen),  once  for  all;  and  that,  by  virtue  of  this  sign, 
the  legal  relations  into  which  others  enter  with  them 
should  be  valid  and  binding  and  should  bind  the  person 
truly  entitled.  We  can  imagine,  for  instance,  a  case  in 
which  a  debtor,  in  ignorance  of  the  fact  that  the  claim 
has  been  transferred,  pays  his  original  creditor;  or  a 
case  in  which  someone  has  obtained  possession  of  a 
certificate  of  inheritance  (Erbschein}  (bonorum  pos- 
sessio),  and  is  regarded  in  the  course  of  dealing  as  the 
heir,  so  that  contracts  made  with  him  are  binding  on 
the  inheritance.  In  this  connection  the  principle  also 
applies,  that  the  heir  of  a  person  who  has  been  declared 
dead  is  treated,  in  dealing  in  respect  to  the  inheritance, 
as  if  he  were  the  real  heir;  even  if  a  mistake  has  been 
made  and  the  person  who  has  been  declared  dead  is 
still  living. 

2.  The  double  legal  order  permits  the  third  person, 
who  enters  into  relations  with  one  who  bears  the  sign 
of  title,  afterwards  to  choose  whether  he  will  accept  the 
title  of  this  person,  or  whether  he  will  disregard  the 
apparent  title  and  recognize  the  true  right. 

3.  From  this  basis,  cases  arise  in  which  the  double 
legal  order  has  been  so  unified  as  not  to  give  the  third 
person  the  choice  between  the  one  or  the  other  legal 
order  but  to  make  the  person  with  the  insignia  of  title 
the  only  determinative   one.     So  it  has   come   about 
that  a  person  who  purchases  movables  in   good   faith 
may,  under  certain  circumstances,  become  their  owner; 
although  the  seller  did  not  own  them,  but  assumed 
such  a  position  in  the  transaction  that  he  had  to  be 
regarded  as  the  person  entitled  to  sell  them.     It  is  the 
same  with  rights  based  on  a  land  registry  (Grundbuch- 
rechf) ;  whoever  buys  in  good  faith  by  reason  of  an  entry 


§11]  LEGAL  ORDER  89 

in  a  land  registry  obtains  title  just  as  if  the  entry  were 
correct. 

4.  A  dual  system  of  acquiring  legal  rights  has  cer- 
tain disadvantages,  especially  a  certain  insecurity,  and 
this  is  not  always  advantageous  for  the  law ;  hence  it  can 
easily  be  understood  that  in  this  matter,  particularly  as 
regards  the  purchase  of  property,  that  course  is  adopted 
which  best  conforms  to  the  interests  of  commerce.6 

4.     Contingency  and  Legal  Order 

1.  Everywhere  in  the  law  chance  must  be  excluded, 
as  far  as  possible;  and  to  every  man  should  be  secured 
what  falls  to  him  according  to  his  interests.     It  must  be 
admitted  that  this  principle  is  merely  a  formal  one,  for 
what  is  due  the  individual  is  determined  by  the  valua- 
tion that  the  legal  order  bestows  upon  his  interests; 
this  varies,  however,  according  to  the  level  and  concep- 
tion of  culture.     Yet,  even  this  formal  principle  is  of 
importance,  in  that  the  law  should  have  no  secret  folds 
out  of  which  more  or  less  might  flow  to  the  one  or  the 
other ;  but,  rather,  that  everything  should  be  distributed 
in  accordance  with  value  and  worthiness. 

This  is  the  system  of  proportionateness  of  which  Aris- 
totle speaks  when  he  says  that  it  is  a  part  of  justice 
that  every  man  should  receive  what  is  due  him;  injus- 
tice consists  in  this,  that  the  one  presumes  beyond  what 
is  due  him.  Thus  did  the  sage  of  olden  time  give 
expression  to  the  principle  that  the  law  must  remain  as 
far  removed  as  possible  from  all  chance,  and  that  every- 
one should  receive  what  is  due  him  according  to  his 
position  in  legal  life. 

This  principle  appears  especially  in  the  following: 

2.  In  many  cases,  changes  in  rights  take  place,  which, 
according  to  the  principles  of  the  law,  cannot  be  avoided, 

•  It  would  be  a  mistake,  however,  to  reject  entirely  the  double  legal 
order  on  this  ground.  I  have  explained  the  idea  in  the  "Arch.  f.  b.  Recht." 
XXIV,  p.  179. 


90  TECHNIC  OF  LAW  [CH.V 

yet  which  involve  a  certain  injustice  in  themselves 
because  they  bring  about  a  displacement  of  values,  for 
which  there  is  no  adequate  reason.  Thus,  it  may  be 
that  in  some  way,  A  becomes  the  owner  of  B's  thing, 
because  the  interests  of  the  course  of  dealing  with  real 
rights  demand  it.  Such  is  the  case,  for  instance,  if  a 
thing  belonging  to  B  becomes  a  component  part  of  a 
thing  belonging  to  A ;  in  this  there  is,  of  course,  no 
economic  injustice,  but  there  is  injustice  in  respect  to 
the  values;  for  if  the  law  of  things  desires  such  an  acqui- 
sition of  property,  it  cannot  by  this  conceal  the  fact  that 
it  is  without  reason  if,  in  this  manner,  the  one  becomes 
richer  by  the  acquisition  of  value  and  the  other  poorer 
by  its  loss.  Justice,  in  such  a  case,  lies  in  the  real 
result  (dinglicher  Erfolg)  for  which  the  legal  order  strives ; 
it  does  not  lie  in  the  result  in  values  (Werterfolg)  that  is 
connected  with  the  real  result,  and  which,  on  the  con- 
trary, is  unjust.  But  in  a  number  of  other  cases,  a  dis- 
placement of  values  takes  place  which  is  not  justified 
by  the  circumstances;  for  instance,  if  something  is  made 
over  to  someone  with  certain  reservations  ("conditions") 
and  these  reservations  are  not  realized.  But  the  prin- 
ciple of  equalization  becomes  still  much  more  important 
in  the  case  of  wrongs,  where  one  has  injured  another  by 
wrong-doing.  The  legal  necessity  then  arises  of  trans- 
ferring the  damage  from  the  person  who  has  been 
injured  to  the  person  who  has  caused  the  injury,  wholly 
or  partially,  according  to  the  measure  of  his  guilt  and 
the  circumstances  of  the  injured  person.  In  this  con- 
nection unlawful  acts  are  meant,  and  the  necessity  of 
compensation  is  apparent. 

This  equalization  is  spoken  of  by  Aristotle  in  the  fifth 
book  of  the  Nicomachsean  Ethics  as  one  of  the  principal 
tasks  of  justice.  Both  when  by  illegal  action,  and  when 
by  legal  events  an  unjustified  displacement  of  values 


§11]  LEGAL  ORDER  91 

takes  place,  equalization  is  necessary:  this  is  one  of  the 
higher  missions  of  the  law. 

3.  This  is  true,  of  course,  only  when  the  displace- 
ment of  values  turns  out  to  be  unjustified,  not  when,  in 
spite  of  a  certain  degree  of  harshness,  an  inherent  justifi- 
cation is  found  in  it;    as  for  instance,  if  in  consequence 
of  the  lapse  of  time  one  suffers  legal  disadvantage.     In 
this  case,  the  legal  disadvantage  is  founded  on  the  work- 
ings of  the  law  itself,  hence  there  is  no  need  of  equaliza- 
tion ;  for  by  another  legal  idea  the  law  is  declared  to  be 
determinative  and  decisive  to  meet  the  present  situa- 
tion.   And  also  if,  for  instance,  the  law  determines  that 
no  adjustment  shall  be  made,  even  if  it  is  a  question  of 
immoral  acquisition  in  which  the  acts  of  both  parties 
were  immoral,  this  is  equivalent  to  declaring  that  the 
law  has  already  been  compensated  and  that,  for  higher 
reasons,  the  acquisition,  though  unjust  in  itself,  must 
stand ;  that  is,  it  becomes  just. 

4.  A  special  form  of  equalization  is  the  elective  com- 
pensation (Wahlrechtsausgleichung).     Legal  security  and 
legal  convenience  often  make  it  possible  for  a  creditor  to 
choose  one  or  another  of  his  debtors  and  to  require  pay- 
ment of  him.     If,  on  the  one  side,  this  is  an  advance  in 
culture,  on  the  other,  it  is  an  injustice,  if  chance  decides, 
and  the  person  from  whom  the  creditor  demands  pay- 
ment is  really  finally  encumbered  with  the  debt.  There- 
fore it  is  provided  in  the  case  of  joint  obligations  that 
every  debtor  who  has  performed,  has  recourse  (Ruck- 
griff)  for  contribution  against  his  co-debtors  to  bring 
about  a  condition  of  affairs,  as  if  each  had  paid  or  con- 
tributed his  proportionate  share.     This  system  is  directed 
towards  accomplishing  the  same  ends  as  the  defense  of 
partition  (Einrede  der  Teilung),  but  it   has    the   great 
advantage  of  not  injuring  the  creditor:   the  creditor  has 
the  right  of  free  choice,  and  the  debtors  must  settle  the 
matter  among  themselves. 


92  THE  LAW  OF  PERSONS  [CH.VI 


SPECIAL  PART 
A.    THE  LAW  OF  INDIVIDUAL  PERSONS 


CHAPTER  VI 
THE  LAW  OF  PERSONS 

SECTION  XII 

I.    THE  LAW  OF  CLASS 
1.    Slavery 

1.  Slavery  is  not,  as  might  be  supposed,  evidence 
that  culture  is  lacking,  but  exhibits  considerable 
economic  progress;  for  in  periods  in  which  economic 
life  is  but  slightly  developed,  no  need  of  slaves  is 
felt.  The  household  is  limited  in  accordance  with  the 
needs  of  the  family  and  the  addition  of  servants  would 
mean  only  the  increase  of  family  cares  and  would  make 
it  necessary  to  divide  the  meager  proceeds  of  industry 
among  a  greater  number  of  consumers  than  formerly. 
It  is  not  until  there  is  a  more  developed  and  growing 
agricultural  or  industrial  life  that  the  need  is  felt  of 
slaves  as  workers  in  agricultural  or  industrial  pursuits. 
But  when  once  this  point  is  reached,  the  need  of  slavery 
is  so  strong  that  the  people  would  risk  everything  in 
order  to  add  to  their  working  force  in  this  way.  Wars 
are  carried  on  for  the  sake  of  taking  slaves;  raids  are 
made,  or  people  belonging  to  some  particular  class  are 
oppressed,  tormented,  and  driven  by  various  economic 
abuses  into  becoming  slaves  and  rendering  a  slave's 
obedience  and  service. 


§12]  THE   LAW  OF  CLASS  93 

2.  However,    slavery   has   still   another,  a  religious 
significance:    the  human  sacrifice  is  generally  a  sacri- 
fice of  slaves.     Slaves  have  been  kept  for  the  special 
purpose  of  being  slaughtered  as  a  sacrifice  to  gods  or 
spirits,  walled  up  when  a  house  was  being  built,  or 
offered  to  the  gods  of  the  harvest  before  a  new  field  was 
planted. 

3.  Before  the  rise  of  technical,  especially  of  industrial 
arts,  slavery  was  the  only  means  of  obtaining  a  divi- 
sion of  labor  on  a  large  scale  in  a  uniform  undertaking, 
for  works  of  that  kind  require  distinct  subordination, 
monotonous  and  steady  exertion,  tasks  which  the  work- 
man dislikes,  and  absolute  discipline  and  order,  such 
as  were  impossible  among  free  persons  in  those  times. 
Even  the  oarsman  in  the  rowing  bank  could   scarcely 
be  a  free  person;    for  everywhere  that  enterprises  re- 
quiring mass  labor  were  set  on  foot,  slaves  could  not 
be  dispensed  with,  since  machines  were  wholly  lacking. 

4.  Hence,  no  one  who  looks  at  the  matter  entirely 
from  the  standpoint  of  our  day,  or  of  human  rights,  will 
be  able  to  appreciate  slavery  in  its  historical  develop- 
ment.    Human  rights  are  not  advantageous  to  every 
development:    technical  arts  must  advance,  humanity 
must  make  progress  in  industrial  life,  and  for  centuries 
this  goes  on  with  the  sacrifice  of  human  life.    The  sacri- 
fice to  culture  is  the  highest  sacrifice  that  the  individual 
can  make,  but  it  is  also  one  that  he  must  make. 

5.  Slavery  may  develop  into  semi-slavery  or  bond- 
age: 

(a)  One  kind  of  bondage  is  pledge  service  (Pfand- 
lingschaff)  in  which  the  debtor  works  off  his  debt ;    as 
he  is  only  temporarily  a  slave,  his  lot  is  lightened.    He 
is  bound  to  service  but  is  not  without  rights. 

(b)  Also   in   other   cases,   however,   experience   has 
taught  that  a  slave  will  do  more  if  his  interest  is  aroused 


94  THE  LAW  OF  PERSONS  [Cn.VI 

and  he  is  given  a  "peculium"  which  he  may  use,  or 
own,  or  partly  own.  Thus  it  is  in  agriculture  where 
the  slave  is  allowed  to  possess  a  small  tract  of  land; 
thus,  too,  it  is  in  trade  and  commerce:  he  has  then  to 
pay  his  lord  a  certain  annual  fee. 

(c)  Certain  circumstances  lighten  the  slave's  con- 
dition : 

(aa)  The  possibility  of  buying  his  freedom  develops. 
As  soon  as  the  slave  appears  as  so  much  capital,  the 
interest  on  which  is  represented  by  his  annual  service, 
the  thought  immediately  follows  that  he  can  substitute, 
for  himself  to  his  master,  capital  in  money:  the  sum 
with  which  he  purchases  his  freedom. 

(bb)  The  female  slave  is  often  the  concubine  of 
her  master;  she  and  her  offspring  therefore  attain  a 
better  position.  The  sexual  relation  here,  as  everywhere, 
is  connected  with  strong  psychic  influence:  the  lord 
does  not  want  his  concubine  to  become  another's  slave 
after  his  death.  Therefore  she  becomes  free  when  he 
dies,  and  her  children  are,  if  not  entirely  free,  at  least 
half-free. 

(cc)  The  slave  is  allowed  to  have  his  wife  and  family. 
Thus  family  life  develops:  the  family  is  not  to  be  sep- 
arated, its  circle  shall  not  be  interfered  with. 

(dd)  The  house  slaves  become  a  part  of  the  house- 
hold, and  the  intimacy  and  confidence  that  thus  grows 
up  between  them  and  the  family  make  them  indis- 
pensable; often  the  family  is  at  the  mercy  of  their 
loyalty  and  discretion. 

(ee)  Slaves  even  play  a  political  part.  They  conduct 
the  most  important  and  responsible  affairs  and  thus 
attain  a  firm  and  unshakable  position. 

(ff)  Note  should  be  taken,  also,  of  the  Bondo-Recht, 
that  is  the  competency  of  the  slave  to  change  his  master 
if  he  wishes  —  an  institution  to  which  we  shall  return 
later. 


512[  THE  LAW  OF  CLASS  95 

6.  With  the  coming  of  semi-slavery  the  following 
changes  occur:   the  slaves  become  free  in  principle,  and 
the  services  that  they  are  required  to  perform  take 
on  another  aspect.     Such  services  are  then  no  longer 
borne  in  the  consciousness  of  bondage,  but  are  regarded 
as  imposed  tasks  which  encumber  the  slave  class  and 
against  which  class  feeling  gradually  comes  to  rebel. 
The  place  of  the  agricultural  slaves  is  filled  by  free 
peasants,  that  of  the  artisan  slaves  by  technical  work- 
men—  with  the  cessation  of  their  special  duties  and 
liabilities  they  join  the  middle  class.      Work  now  be- 
comes ennobled. 

7.  To  this  appreciation  of  work  the  ancients  attained 
only  in  exceptional  cases;    this  is  shown  especially  in 
Aristotle's  "Politics,"  who,  by  the  way,  had  a  deep 
historical    comprehension    of    the   whole    question    of 
slavery. 

He  fully  recognized  that  in  the  industrial  life  of  the 
ancients  slavery  was  a  necessity;  and  his  famous  asser- 
tion, that  if  the  weaver's  shuttle  worked  of  itself,  no  more 
slaves  would  be  necessary,  is  the  best  explanation  of  the 
whole  institution.  Yet,  we  must  reply  to  this  ancient 
thinker  that  physical  labor,  especially  if  it  is  carried  out 
with  care,  attention,  and  skill,  and  if  the  workman  has 
a  psychic  interest  in  the  result,  so  that  he  works  with 
body  and  mind,  by  no  means  lacks  nobility  and  dignity. 
Consequently,  from  our  point  of  view,  it  is  wrong  to 
say  that  persons  who  perform  physical  labor  must  be 
without  rights,  so  that  they  may  be  regarded  only  as  the 
organs  and  tools  of  their  master.  Moreover,  Aristotle 
too  admits  that  a  distinction  must  be  made  between 
slavedom  (Sklaventuni)  as  a  natural  institution,  and 
actual  slavery,  and  that  it  by  no  means  follows  that  all 
those  persons  who  were  slaves  according  to  the  law  were 
also  destined  by  nature  to  be  slaves. 


96  THE  LAW  OF   PERSONS  [Cn.VI 

2.     Nobility 

1.  The  nobility  is  a  favored  class  among  a  people, 
favored  partly  in  political  position,  partly  under  civil 
law,  and  favored,  too,  by  various  honorary  rights  and  in 
divers  other  ways  to  its  advantage.    Such  a  nobility  has 
arisen  in  various  ways,  most  commonly  by  one  people 
conquering  another  and  treating  the  native  inhabitants 
as  a  lower  class.     But  also  royalty  and  the  priesthood 
have  frequently  been  sources  of  the  nobility:  as  regards 
royalty,  either  by  raising  up  the  relatives  of  the  royal 
house  to  the  nobility,  or  by  ennobling  those  in  the  king's 
service;    as   regards   priesthood,   because   priests   were 
originally  looked  upon  as  possessing  special  spiritual 
endowments  whereby  they  formed  a  nobility  of  a  par- 
ticular kind,  which  was  perpetuated  in  their  descend- 
ants, as  people  supposed  the  priestly  gift  to  be  hereditary. 

Frequently,  also,  possessions  ennoble,  especially  the 
possession  of  much  landed  property;  and  sometimes  a 
certain  piece  of  property  carries  a  noble  title  with  it, 
and  gives  the  possessor  a  prominent  position. 

2.  The  privileged  members  of  the  nobility  are  raised 
to  a  still  greater  height  by  the  fact  that  their  marriage  is 
subject  to  a  special  restriction;   that  is  to  say,  a  noble 
can  marry  only  one  of  equal  birth. 

3.  The  existence  of  a  nobility  is  justified  as  long  as  it 
serves  the  progress  of  culture.     If  the  nobles  form  a 
higher  race,  as,  for  instance,  the  Aryan  Hindoos  as  com- 
pared with  the  native  population,  not  only  is  a  preferred 
rank  justified,  but  also  the  principle,  that  the  mixing  of 
the  two,  which  would  lead  to  a  degeneration  of  the  race, 
is  to  be  strictly  avoided,  is  perfectly  right.     In  addition, 
the  nobility,  by  reason  of  its  class  feeling,  its  wealth, 
its  relations  with  the  home  and  foreign  governments, 
has  the  opportunity  of  observing  the  things  of  life  from 


§12]  THE  LAW  OF  CLASS  97 

a  higher  plane.  If  the  nobility  feels  itself  obliged,  be- 
cause of  its  preferred  position,  to  render  special  service 
to  the  State,  and  to  attain  to  high  achievements,  that 
alone  proves  it  to  be  a  pillar  of  cultural  order,  and  hence 
fully  justified ;  for,  like  all  classes,  it  must  maintain  itself 
by  constant  achievements. 

4.  Here,  too,  an  equalization  of  the  classes  will 
gradually  take  place;  the  upper  middle  class  will  rise 
to  the  nobility  in  its  manner  of  life,  its  wealth,  and  its 
insight;  and  thus  it  may  happen  that  the  distinction 
between  the  two  loses  all  actuality,  and  can  only  be 
artificially  preserved.  One  point  may  come  under  con- 
sideration: if  it  is  assumed  that  the  members  of  the 
princely  houses  belong  to  a  higher  nobility,  it  may  be 
justifiable  to  regard  their  marriages  with  persons  of 
equal  birth  as  the  only  proper  ones;  for,  on  the  one 
hand,  it  is  to  the  advantage  of  the  nation  if  the  different 
States  are  thus  connected,  and,  on  the  other,  constant 
intercourse  in  higher  positions  may  extend  the  view  of 
such  persons  and  make  them  better  fitted  to  rule  than 
others.  Moreover,  just  as  marriage  connections  with 
royal  houses  may  be  advantageous,  those  with  other 
families  may  possibly  be  detrimental ;  middle  class  fami- 
lies finding  their  way  into  the  government  in  a  manner 
that  is  not  in  accordance  with  the  material  interests  of 
the  realm  and  the  universal  culture  of  the  people;  as, 
for  instance,  if  the  daughter  of  a  capitalist  should  be- 
come queen,  which  might  lead  to  the  unjust  advantage 
of  individuals  and  great  injury  to  the  country. 

In  this  lies  the  reason  for  the  difference  between  the 
higher  and  the  lesser  nobility,  and  the  basis  of  the  asser- 
tion, that  if  laws  relating  to  equal  birth  still  exist  today, 
they  should  apply  only  to  the  higher  nobility,  so  that 
it  is  entirely  unjustifiable  to  consider  the  lesser  nobility 
of  equal  birth. 


98  THE  LAW  OF  PERSONS  [Cn.VI 

Our  unphilosophic  age  has  failed  to  comprehend  this, 
as  it  has  so  much  else,  and  has  given  decisions  showing 
that  concern  for  a  mass  of  insignificant  trivialities  has 
caused  people  wholly  to  misapprehend  the  spirit  of 
history. 

SECTION  XIII 

II.    FAMILY  LAW 

1.    General  Remarks 

1.  The  propagation  of  mankind  is,  of  course,  the  first 
condition    for   the   development    of    human  culture  — 
in  fact,  propagation  in  an  increased  proportion  —  for 
culture  requires  the  aid  of  all  forces,  and  the  great  talents 
that  emanate  from  the  mass  can  only  arise  from  an  exten- 
sive base  of  population.    This  is  why  nature  has  endowed 
man  with  such  a  powerful  instinct  of  reproduction,  that 
it  may  be  called  the  strongest  and  most  irresistible  of 
all  our  instincts.     The  legal  institutions  that  regulate 
human  reproduction,  and  in  this  way  are  intended  to 
preserve  the  perpetuation  of  the  human  race,  are  there- 
fore of  the  very  greatest  importance;  in  fact,  they  may 
be  termed  the  most  important  that  humanity  possesses. 

2.  The  reproductive  activity  of  human  beings,  how- 
ever, corresponding  entirely  to  human  nature,  is  con- 
nected with  a  vast  number  of  psychic  emotions,  feelings, 
desires,  pleasure  and  suffering,  and  therefore  involves 
an  abundance  of  idealities  which,  in  the  relations  that 
are  grouped  about  reproduction,  may  reach  the  most 
sublime  development.     Any  treatment  of  the  institu- 
tions that  concern  propagation  that  does  not  cultivate 
and  advance  these  relations  not  only  errs,  but  it  degrades 
mankind.     Hence,  nothing  could  be  more  abominable 
than  the  way  in  which  Natural  Law  in  the  seventeenth 
and  eighteenth  centuries  treated  marriage  as  a  kind  of 


§13]  THE  LAW  OF  CLASS  99 

breeding  institution,  and  declared  the  only  important 
thing  to  be  that  the  propagation  of  human  beings  should 
go  on  under  suitable  conditions  and  the  children  be 
properly  brought  up.  Still  more  detestable  is  Kant's 
view  which  regards  marriage  as  a  lease  of  the  sexual 
organs  —  a  brutality  that  will  ever  remain  a  blot  on 
German  thought.1 

3.  The  psychic  emotions  that  are  connected  with 
reproduction  are  feelings  of  the  most  intense   affec- 
tion and  self-sacrifice  in  which  each   individual   lays 
aside  his  egoism  and  desires  to  devote  himself  entirely 
to  the  welfare  of  the  one  he  loves.    This  affection  leads 
to  an  intermingling  of  the  two  lives,  each  one  seeking  to 
understand  the  other,  and  to  devote  to  him  his  best  self, 
so  that  two  souls  become  as  one,  and  each  finds  in  the 
other  its  necessary  supplement.    As  a  result,  the  cul- 
tural aspirations  gain  tremendous  power,  and  personality 
expands  in  all  directions. 

4.  In  this  way,  the  legal  institutions  that  surround 
reproduction  may  have  a  moderating  and  quieting  influ- 
ence, and,  on  the  other  hand,  they  may  act  as  a  stimulus 
to  culture  and  the  mind,  besides  vitalizing  and  furthering 
activity.     But,  they  gain  a  still  more  extensive  back- 
ground, through  the  fact  that  from  the  very  beginning, 
even  before  man  became  man,  nature  has  endowed  at 
least  the  female  parent  with  a  natural  love  for  her  chil- 
dren, who  seem  to  her  like  a  part  of  herself  and  in  whose 
development  she  finds  again  the  first  beginnings  of  her 
psychic  life  and  the  long  forgotten  recollections  of  her 
own  youth.     In  this  direction,  too,  these  institutions  may 
become  a  source  of  the  purest  joy;    they  can  lead  to 
idealism  and  to  self-sacrifice  by  means  of  which  not  only 
the  perpetuation  of  mankind  is  assured,  but  also  the 
greatest  possible  development  of  its  forces  is  advanced. 

i  See  my  presentation  in  "Mann  und  Weib,"  II,  p.  272  f. 


100  THE  LAW  OF  PERSONS  [Cn.vi 

5.  The  institution  the  purpose  of  which  is  to  serve 
propagation  and  all  the  psychic  impulses  and  ideals  that 
surround  it,  is  marriage.  Its  development  and  the  form 
it  took  among  the  different  nations  is  one  of  the  most 
fascinating  studies  of  scientific  research ;  but  we  cannot 
follow  it  here.  Nor  can  we  deal  at  length  with  its  original 
form,  group-marriage,  in  which  reproduction  took  place 
in  groups,  the  members  of  which  were  married  to  a  group 
of  husbands  and  wives,  both  men  and  women  being 
common  husbands  and  wives.  This  has  been  elsewhere 
authenticated,  and  we  need  only  add,  that  when  people 
seek  to  refute  the  fact  by  pointing  out  the  sexual  rela- 
tions that  exist  among  the  anthropoid  apes,  etc.,  that 
live  in  small  companies,  we  may  reply  that  it  is  a  char- 
acteristic of  mankind  to  strive  and  work  together  in 
larger  numbers,  and  in  earlier  times  the  form  of  marriage 
that  corresponded  to  this  mode  of  life  was  not  monogamy 
but  group-marriage. 

Group-marriage  may  lead  to  polyandry,  a  form 
that  is  still  found  among  a  large  number  of  peoples, 
a  common  custom  being  for  several  brothers  to  have 
but  one  wife.  This  has  certain  psychic  advantages, 
but  also  the  weighty  disadvantage  that  it  decreases 
the  population — especially  when  it  is  combined  with 
the  slaughter  of  the  female  children,  the  only  means 
of  explaining  the  consistent  carrying  out  of  such  a 
system. 

Much  more  frequent,  in  later  periods,  is  polygyny  (or 
polygamy)  which  follows  naturally  in  the  wake  of  capture 
and  purchase  marriage ;  for,  whatever  a  man  takes  pos- 
session of,  or  acquires  in  this  way,  he  regards  as  his  own. 
The  great  expense  of  such  a  custom,  however,  often 
interferes  with  its  practice;  and  it  must,  therefore,  be 
regarded,  even  among  the  peoples  that  permit  it,  as  an 
exception,  not  as  the  rule. 


§13]  FAMILY  LAW  101 

6.  The  civilized  peoples  of  today  are  sharply  divided 
into  nations  of  Christian  and  nations  of  Mohammedan 
culture.      While    Mohammedan    culture    has    retained 
polygamy,  all  Christian  peoples  have  adopted  monogamy, 
and  regard  this  institution  as  such  an  essential  principle 
of  their  cultural  order  that  they  have  declared  bigamy 
to  be  a  grave,  major  crime.     The  cultural  idea  that  under- 
lies this,  is  that  a  mutual  psychic  intermingling  of  lives 
is  made  possible  only  by  the  self-restraint  of  two  indi- 
viduals, and    that   a  plurality  of   wives  must  lead  of 
itself  to  the  basest  passions,  to  an  egoistic  self-assertion 
that  poisons  marriage,  and  to  constant  petty  jealousies, 
suspicions,  and  prejudices,  unless  the  wives  are  in  com- 
plete subjection,  and  consequently  are  mentally  inferior 
and  without  self-assertion  —  a  condition  that  is  equally 
detrimental  to  all  development;   for  it  is  an  irretrievable 
loss  to  humanity,  if  it  lacks  woman's  spiritual  cultural 
effort. 

7.  High  idealism  moved  the  nations  when  they  at- 
tained to  the  conception  that  monogamous  marriage 
must  be  a  marriage  for  life  and  death,  that  is,  that  the 
surviving  spouse  must  remain  true  beyond  the  grave. 

"...  wir  fahren  zum  Leben  zum  Tode, 
Uns  lockt  ein  einsames  Bild." 

This  has  frequently  led  to  the  practice  of  suttee,  the 
wife  following  her  husband  into  the  grave.  But  this 
strained  idealism  has  been  given  up;  for  it  meant  a  sacri- 
fice of  the  future  to  the  present,  and  is  at  variance  with 
human  nature  which  in  a  high  degree  is  subject  to  the 
power  of  time ;  so  that  even  the  most  idealistic  affections 
weaken  with  the  passing  of  the  years,  lose  their  actuality, 
and  retreat  into  the  realm  of  happy  recollections.  For 
this  reason,  there  can  be  no  objection  from  an  ethical 
standpoint  to  a  second  marriage;  frequently  practical 
circumstances  make  one  advisable,  and  it  is  often  a  prop 


102  THE  LAW  OF  PERSONS  [Cn.VI 

and  stay  during  the  rest  of  the  life  of  the  bereaved  man 
or  woman. 

8.  One  of  the  most  important  questions  in  this  con- 
nection is  that  of  the  indissolubility  or  dissolubility 
of  marriage;    and  here,  too,  a  strained  idealism  com- 
manded absolute  indissohibility,   largely,   to  be  sure, 
because  of  the  belief  in  the  mystical  union  of  souls  which 
no  act  of  man  could  disunite.    But  this  idealism,  too, 
could  not  always  be  maintained,  and  the  sublime  idea 
of  indissoluble  marriage   falls  before   the   realities  of 
life;    for,  as  high  as  is  the  ideal  significance  of  mar- 
riage, just  as  great  are  the  demands  that  it  makes  of 
those  who  enter  into  it,  and  just  as  great  are  the  dangers 
to  which  it  is  subject  in  consequence  of  differences 
in  human  nature,  and  of  the  impossibility  in  some  cases 
of  two   persons  laying   aside    their    peculiarities   and 
adapting  themselves  entirely  to  each  other.     In  such  a 
case,  marriage  may  be  not  only  a  cause  of  misery  and 
suffering,  but  it  may  hinder  psychic  development,  and 
great  talents  and  remarkable  minds  thus  be  crushed 
and  crippled.    This  is  a  frightful  danger,  and  in  order 
to  avert  it,  to  some  extent,  actual  separation  was  allowed 
in  such  a  case  —  the  least  that  could  be  done  to  avoid 
constant  torture  and  cruel  suffering,  the  distress  of  daily 
excitement   and   worry.     When   this   is   so,   however, 
there  is  no  ethical  reason  for  upholding  the  marriage, 
apart  from  consideration  for  the  children,  who  them- 
selves scarcely  can  thrive  under  such  home  conditions. 
To  dissolve  the  marriage  in  such  a  case  is  an  urgent 
cultural  necessity. 

9.  The  question  has  been  asked,  whether  the  dis- 
solution of  the  marriage  is  not  a  matter  for  settlement 
by  the  married  couple  themselves,  or  even  if  it  is  not 
a  matter  of  free  individual  choice,  so  that  marriage 
would  really  give  place  to  free  love.    In  answer  to  this, 


513]  FAMILY  LAW  103 

it  must  be  said  that  freedom  of  this  sort  would  be  in- 
jurious to  the  majority;  for  such  freedom,  too,  is  an  ideal 
that  would  come  to  grief  in  consequence  of  the  imper- 
fections of  human  nature.  Marriage  involves  not 
only  joys  and  pleasures,  but  also  difficult  duties  and 
responsibilities  which  an  individual  must  take  upon  him- 
self even  though  he  feel  them  to  be  a  burden.  Especi- 
ally, if  either  the  husband  or  wife  becomes  ill,  and  in 
need  of  help,  it  is  one  of  the  most  solemn  marriage 
duties  of  the  other  to  render  aid,  to  comfort,  and  to 
alleviate  suffering.  In  these  cases,  simply  to  dissolve 
the  marriage  would  be  a  heartless  barbarism,  and  in 
direct  contradiction  to  the  highest  duties  of  humanity; 
for  only  when  men  learn  to  alleviate  the  suffering  of 
life,  will  it  be  possible  fully  to  develop  their  forces  and 
gifts;  suffering  natures,  in  particular,  are  often  persons 
of  deep  and  remarkable  mental  power.  And  in  other 
ways,  too,  it  is  advantageous  for  humanity,  if  the 
individual  is  protected  against  himself,  and  cannot 
easily  give  rein  to  passing  moods  and  momentary  im- 
pulses: hence  marriage  should  be  dissoluble  only  for 
the  weightiest  reasons.  The  constant  fear  and  anxiety 
that  a  person  would  experience,  who  was  daily  and  hourly 
subject  to  a  one-sided  decree  of  separation  spoken  by 
a  partner,  perhaps  of  coarser  fibre,  would  result  in  men- 
tal torture  that  would  form  a  strong  hindrance  to  culture. 
10.  The  formalities  of  the  marriage  contract,  and 
the  conditions  under  which  it  is  dissolved,  belong  to 
each  nation's  own  particular  system  of  law. 

2.    Exogamy 

1.  As  a  survival  of  the  system  of  group-marriage, 
the  principle  remained,  that  marriage  should  not  take 
place  in  the  same  group,  but  in  another.  This  was 
accomplished  as  follows: 


104  THE  LAW  OF  PERSONS  [Cu.VI 

2.  A  member  of  the  group  A  was  obliged  to  marry 
a  member  of  the  group  B;  this  is  called  exogamy;  and 
a  distinction  is  made  between  positive  and  negative 
exogamy.  In  the  former,  a  certain  group  is  designated, 
from  which  the  man  must  choose  his  wife;  in  the  latter 
he  may  not  marry  in  his  own  group,  but  he  may  marry 
a  woman  out  of  any  other.  When  the  group  system 
and  totemism  decayed,  the  principle  was  retained 
that  no  one  should  marry  one  of  his  immediate  kin, 
and  a  certain  remoteness  of  relationship  had  to  exist 
before  a  marriage  was  permitted.  This  system  has 
transplanted  itself  more  or  less  into  civilized  ages;  in 
such  a  manner,  however,  that  the  group  of  persons  be- 
tween whom  marriage  was  forbidden  has  shrunk  more 
and  more;  so  that  the  circle  of  those  who  might  marry 
each  other  has  grown  ever  wider.  But,  to  a  certain 
extent,  the  system  of  exogamy  has  remained,  especially 
in  this,  that  marriage  between  brothers  and  sisters, 
between  parents  and  children,  and  between  certain  de- 
grees of  relationship  in  law,  is  forbidden.  This  is  not 
entirely  without  reasonable  foundation.  One  reason  is 
of  hygienic  nature:  it  is  assumed  that  there  is  reason 
to  fear  that  marriage  between  immediate  relatives  leads 
to  degeneration  or  to  sterility;  certainly  physical  and 
mental  family  defects  should  not  be  accentuated  by 
such  marriages,  but  should  be  effaced  by  marriage  with 
members  of  other  families.  A  second  reason  is  that 
different  families  should  form  some  connection  with 
one  another,  so  that  the  structure  of  the  State  may  be 
firm  and  close,  and  not  shaken  by  friction  between  the 
various  clans  or  families  that  compose  it;  and  there  is 
no  firmer  tie  than  that  formed  by  marriages  between 
different  families.  A  third  reason  is  ethical  in  character. 
The  development  of  sexual  passions  within  the  imme- 
diate family  circle  must  be  prevented,  and  this  can  be 


§13]  FAMILY  LAW  105 

best  accomplished  by  making  sexual  relationships  in 
the  family  itself  detested,  so  that  sexual  life  between 
members  of  the  same  family  may  be  inconceivable. 
In  this  way,  culture  has  artificially  created  a  horror 
naturalis — a  phenomenon  of  frequent  appearance ;  cul- 
ture creates  a  second  nature,  of  which,  however,  the 
philosophy  of  law  in  earlier  times  had  not  an  inkling. 

3.    Family 
(a)     Organization. 

1 .  The  family  is  bound  up  with  the  institution  of  mar- 
riage:  the  relation  of  children  to  their  parents  is  one  of 
the  most  important  problems  of  humanity;   in  the  first 
place,  because  the  children  require  long  continued  train- 
ing and  education ;   and  then,  because  the  preservation 
of  the  family  tie,  even  after  the  children's  education  is 
completed,  is  of  the  highest  importance. 

2.  The  continuance  of  family  feeling  after  the  chil- 
dren are  grown  is  of  the  greatest  value  to  humanity; 
indeed,  it  stands  above  all  other  bonds.     On  the  one 
side,  there  is  the  natural  blood-tie,  on  the  other,  the  close 
association  that  has  been  established  during  the  years  of 
education;     both    together   produce   a   natural   under- 
standing, a  harmony  of  conduct,  which  should  not  be 
lost,  but  should  be  cultivated  in  later  life  as  a  lasting 
common  tie  and  as  a  pledge  of  self-sacrificing  effort  for 
humanity.     (Compare  p.  108  (2).) 

3.  The  nature  of  family  feeling  will  differ,  according 
to  whether  it  is  the  relation  to  the  mother,  or  to  the 
father,  that  is  determinative.     We,  from  our  point  of 
view,  combine  both  relations,  and  can  scarcely  conceive 
of  the  time  when  such  a  combination  was  considered 
impossible;   and  yet  this  was  the  case.     As  the  mother 
and  father  belonged  to  different  families,  the  combina- 
tion of  matriarchy  and   patriarchy  was  necessary  to 


106  THE  LAW  OF   PERSONS  [Cn.VI 

bring  the  child  within  the  membership  of  both  families. 
But  that  was  impossible  in  times  when  each  family  lived 
to  itself,  and  each  family  circle  formed  a  separate  social 
and  political  unit  which  maintained  its  interests  one- 
sidedly,  and  expressed  them,  as  far  as  the  other  families 
were  concerned,  in  every  way,  even  in  disputes  and  war. 
The  struggles  of  those  ages  are  mostly  family  wars, 
family  fighting  against  family.  Under  such  conditions 
it  was,  if  not  inconceivable,  at  least  not  feasible  for  one 
person  to  belong  to  more  than  one  family,  and  hence 
be  committed  to  both  sides  in  case  of  war.  An  individual 
who  belonged  to  more  than  one  family  was  in  a  position 
similar  to  the  sujet  mixte  of  today  who  belongs  to 
two  countries ;  a  state  of  things  which  does  indeed  exist, 
which  is  everywhere  regarded  as  deplorable,  and  to  be 
avoided  if  possible. 

4.  The  oldest  tie  was  that  of  the  child  to  the  mother 
and  to  the  maternal  family,2  which  is  easily  compre- 
hensible; for  the  child  is  borne  by  the  mother,  is  often 
nourished  by  her  for  years,  and  in  its  early  youth  is 
entirely  in  her  care.  At  the  same  time,  the  women  are 
the  keepers  of  the  home;  whereas  the  men  wander 
about,  and  are  often  absent,  especially  in  times  of  war. 
Under  such  conditions,  matriarchy  is  the  only  rational 
arrangement,  and  it  was  therefore  formerly  quite  gen- 
eral. Not  until  later,  especially  under  the  influence  of 
wife-purchase  and  rape,  but  also  for  other  reasons  which 
will  be  discussed  elsewhere,  did  matriarchy  give  way  to 
patriarchy  and  the  child  belong  to  the  father  and  the 
father's  family.  This  was  the  plane  reached  by  the  cul- 
tural legal  systems  of  the  ancients,  in  Indian,  Greek, 
Roman,  and  Germanic  law,  and  the  law  of  the  Eastern 
Asiatics;  and  this  was  the  condition  that  prevailed 

*  Only  the  complete  misunderstanding  of  ethnology  and  comparative 
legal  science  can  lead  to  a  contrary  assertion ;  refutation  is  superfluous. 


513]  FAMILY  LAW  107 

during  the  time  that  the  greatest  formations  of  culture 
among  the  nations  were  accomplished. 

5.  Patriarchy  has  great  advantages  over  matriarchy. 
Under  the  latter  system,  the  child  belongs  to  the  mother, 
but  it  also  belongs  to  the  mother's  relatives;  that  is, 
to  those  who  have  the  same  mother  as  the  child's  mother; 
hence,  especially,  to  her  brothers,  so  that  the  relation 
between  maternal  uncle  and  nephew  is  the  closest  that 
exists  between  two  men.  This  relation  is  a  natural  one 
only  if  the  mother  lives  with  her  brothers,  so  that  brother, 
sister  and  sister's  child  form  one  household.  But  such 
a  state  of  affairs  cannot  be  maintained;  as  soon  as  the 
peoples  become  nomadic  and  consequently  scatter,  it 
becomes  unendurable  for  the  husband  to  stand  apart. 
Then,  of  course,  if  the  reproduction  of  children  is  to 
continue,  the  husband  must  live  with  his  wife  and 
child;  the  uncle,  on  the  other  hand,  lives  perhaps  in  a 
quite  distant  district,  follows  other  aims,  and  has  no 
intimate  relations  with  them.  Under  such  conditions, 
the  closer  the  marriage  and  immediate  family  relation 
becomes,  the  more  the  child,  as  soon  as  it  needs  the 
guidance  of  a  man's  hand,  will  attach  itself  to  the  father, 
and  the  more  contrary  to  nature  it  must  appear  if  the 
man  to  whom  the  child  turns  is  not  its  father.  If  the 
father  belongs  to  family  A,  the  child  to  family  B,  the 
seeds  of  discord  already  exist  in  the  heart  of  the  house- 
hold :  in  case  of  war  between  the  two  families  father  and 
son  stand  on  opposite  sides.  Such  conflicts  in  a  circle 
in  which  the  greatest  loyalty  and  undivided  confidence 
should  rule,  poison  the  whole  relationship  from  the 
beginning. 

Another  solution  would  only  be  possible,  if  the  wife 
were  the  head  of  the  house,  and  she  and  her  political  side 
determined  the  whole  relation.  This  system,  has,  indeed 
existed;  it  is  called  gynarchy,  but  it  has  always  been 


108  THE  LAW  OF  PERSONS  [CH.VI 

rare,  and  was  soon  recognized  as  contrary  to  nature. 
Women  have  other  tasks  than  that  of  ruling,  and  other 
qualities  than  the  persevering  consistency  that  the  life 
of  a  ruler  demands.  Hence,  it  will  be  the  rule  for  the 
husband  to  be  the  head  of  the  house,  and  the  unnatural 
condition  that  arises  if  the  children  are  removed  from 
his  circle  of  government  will  always  be  felt  as  a  tremen- 
dous hindrance  to  the  development  of  family  life.  There- 
fore, only  those  nations  in  which  the  father's  right  was 
paramount  have  been  capable  of  fulfilling  the  higher  duties 
of  national  life ;  they  alone  have  had  the  inherent  strength 
powerfully  to  resist  storms  from  within  and  without. 

(6)     Family  Education. 

1.  The  bringing  up  or  training  of  children  took  place 
in  the  family  from  the  beginning.     During  the  period 
that  group-marriage  was  general,  it  took  the  form  of 
exchanging  children  to  a  greater  or  less  extent,  so  that 
one  or  another  member  of  the  group  was  made  respon- 
sible for  one  or  more  children.     When  monogamy  became 
customary,  the  child  remained  with  its  parents,  and  such 
an  intimate  relation  between  them  and  the  children  was 
thus  developed  that  the  strongest  tie  was  formed.    The 
unity  of  blood  corresponded  to  the  unity  of  all  vital  rela- 
tions. 

2.  It  is  therefore  comprehensible  that  history   long 
preserved  this  tie,  and  even  surrounded  it  with  the 
glamor  of  poetry.     Even  today,  the  relation  between 
children  and  parents  is  one  of  the  most  intimate  and 
sacred;  it  is  the  source  not  only  of  ethical  dignity,  but 
also  of  deep  moral  strength.     (See  p.  105  (2).) 

3.  This  institution,  however,  is  not  adequate,  because 
the  lofty  ideals  that  underlie  the  whole  often  fail,  and 
the  seeds  of  anti-culture,  even  the  sources  of  vice  and 
social  anarchy,  are  sometimes  found  in  the  heart  of  the 


§13]  FAMILY  LAW  109 

family  itself.  When  this  is  the  case  it  is  high  time  to 
take  the  children  away  from  their  parents,  and  to  put 
their  training  into  the  hands  of  the  State. 

4.  A  number  of  nations,  even  in  earlier  times,  de- 
parted from  the  custom  of  family  training,  and  intro- 
duced another  kind  which  may  be  divided  into  two 
separate  systems: 

(a)  The  system  of  foster-paternity  (Pflegvaterschqft) : 
an  altered  system  of  family  training,  under  which  another 
than  the  real  family  of  the  children  was  made  responsible 
for  them.  This  is  justifiable  in  cases  where  there  is 
serious  immorality  in  the  family,  or  when  exigencies  of 
another  nature  prevent  the  family  from  bringing  up  the 
children.  But,  also,  in  other  circumstances,  this  system 
may  be  advisable;  for  instance,  if  the  children  of  nobles, 
etc.,  are  to  be  brought  up  by  ordinary  citizens,  so  that 
they  may  learn  to  be  simple  and  thorough. 

(6)  Under  another  system,  the  children,  especially 
the  boys,  were  brought  up  by  the  State  and  the  temple, 
so  that  from  their  earliest  youth  their  patriotism  and 
civic  responsibility  might  be  developed,  and  that  by 
strict  discipline  and  simple  living  they  might  be  taught 
to  serve  their  country  and  society. 

5.  The  modern  custom  of  giving  children  into  the 
care  of  the  State,  or  placing  them  in  other  families, 
therefore,  easily  finds  a  precedent  in  history ;  and  in  this 
connection,  too,  the  principle  applies,  that  no  one  system 
can  be  regarded  as  universally  beneficial.     On  the  con- 
trary, sometimes  one  method,  sometimes  another  will 
best  fulfill  the  cultural  conditions  of  a  nation. 

(c)     Family  Property. 

1.  Whether  property  in  the  family  is  divided,  or  is 
held  in  common,  depends  largely  upon  whether  the  idea 
of  common  property  is  still  powerful,  or  whether  efforts 
toward  individualization  have  reached  the  point  where 


110  THE  LAW  OF  PERSONS  [CH.VI 

they  extend  even  into  the  family  circle.  Even  after 
private  ownership  was  already  in  existence,  family 
ownership  still  continued  in  a  wider  or  narrower  sense; 
and  finally,  in  the  narrowest  sense,  where  family  prop- 
erty belonged  to  the  immediate  family  consisting  of  the 
parents  and  their  children.  Family  property  continued 
to  be  held  in  this  way  as  the  family  property  of  the 
parents  and  as  the  hereditary  estate  which  consolidated 
the  property  of  the  parents  and  the  children.  For  a 
long  time,  we  find  traces  of  this  common  ownership; 
especially  in  the  community  of  goods  of  man  and  wife, 
and  also  in  the  arrangement  that  the  property  of  the 
children  belonged  to  the  parents,  even  when  such  prop- 
erty was  secured  to  the  children.  Like  a  release  from 
these  fetters  came  the  idea  of  a  separation  of  property 
in  connection  with  a  unity  of  property;  that  is  to  say, 
that  individual  property  should  remain  separate,  but 
that  the  possessor  of  one  property  should  have  the  right 
of  usufruct  in  the  other.  In  this  way,  the  emoluments 
of  both  properties  would  be  in  the  same  hands.  It  is 
not  rare  to  find  usufruct  combined  with  the  power  of 
disposal,  which  makes  the  connection  still  closer. 
(Compare  p.  76.) 

2.  Our  legal  systems  stand  for  the  most  part  on  this 
plane.  In  some  instances,  the  connection  here  too  has 
been  dissolved.  Our  matrimonial  property  laws  show 
an  external  property  connection,  the  husband  having 
the  right  of  usufruct  and  disposal  in  the  wife's  property, 
and  the  right  of  usufruct  in  the  children's  property. 
Both  may  lead  up  to  a  separation  of  the  property  of 
husband  and  wife,  both  of  whom,  however,  are  obliged 
to  contribute  according  to  their  property  to  the  cost  of 
the  household;  and  it  may  also  be  brought  about  that 
the  child's  property  becomes  free,  but  that  the  father 
may  draw  upon  it  in  order  to  pay  the  expenses  of  the 
child's  education. 


§13]  FAMILY  LAW  111 

3.  Whether  this  separation  really  meets  the  situa- 
tion, depends  largely  upon  whether  individualism  has 
reached  such  a  point  that  the  former  state  is  felt  to  be 
an  undignified  compulsion;  and  whether,  on  the  whole, 
the  women  and  children  are  better  off  under  the  one  or 
under  the  other  system.  As  far  as  women  are  con- 
cerned, the  tendency  is  all  in  the  direction  of  property 
separation,  but  in  such  manner  that  a  wife  can  give 
her  husband  the  free  right  of  disposal  of  the  emoluments 
without  his  being  obliged  to  account  for  them.  In 
respect  to  the  children,  a  similar  arrangement  may  be 
made  [in  Germany]  by  the  Communal  Orphan  Council. 
This  system  allows  of  great  latitude  of  treatment  accord- 
ing to  person,  the  amount  of  the  property,  and  the  needs 
of  the  case,  in  contrast  to  the  pattern-like  rigidity  of  the 
law  hitherto  maintained ;  and  thus  the  advance  of  cul- 
ture here  also  produces  a  condition  in  which  the  inde- 
pendence of  the  person  is  preserved,  on  the  one  side,  and, 
on  the  other,  the  intimate  psychic  and  social  relations  of 
men  find  expression. 

(d)     Illegitimate  Children. 

1.  As  long  as  matriarchy  rules  there  will  be  no  differ- 
ence between  legitimate  and  illegitimate  children.  And 
even  under  the  laws  of  patriarchy  the  principle  was 
originally  upheld  that  a  woman's  child  belonged  to  her 
husband  irrespective  of  by  whom  it  was  begotten.  Not 
until  later  was  a  distinction  made;  and  the  child  of 
whom  the  woman's  husband  was  not  the  father  was  dis- 
owned. But,  if  a  child  was  born  before  marriage  (out 
of  wedlock),  among  many  peoples  it  was  killed  (often  the 
birth  was  prevented  by  abortion),  or  the  child  belonged 
to  the  mother's  family  until  the  mother  married,  when 
it  was  taken  into  the  new  family.  Of  any  special  disre- 
gard of  these  children  born  before  marriage  there  is 


112  THE  LAW  OF  PERSONS  [Cn.VI 

originally  no  trace  whatever,  and  a  position  equal  to 
that  of  legitimate  children  was  not  refused  them,  until, 
in  times  of  patriarchy,  the  idea  gained  ground  that  not 
every  child  that  happened  to  come  into  the  marriage 
was  to  be  considered  legitimate,  but  only  those  begotten 
by  the  husband.  The  consequence  was,  that  the  child 
born  before  marriage,  like  the  child  that  was  the  result 
of  adultery,  remained  outside  the  husband's  family,  and 
belonged  to  the  mother ;  the  rights  on  the  maternal  side, 
at  that  period,  however,  were  not  very  profitable,  as 
the  mother  did  not  inherit  much  and  was  restricted  to 
the  barest  necessaries. 

2.  In    later    times,    the    legitimate    child    occupied 
another  position,  when,  instead  of  patriarchy,  the  com- 
bined right  of  the  father  and  mother  was  established  (the 
cognate  system).     The  right  of  the  mother  then  became 
more  important,  and  this  considerably  improved  the 
position  of  the  illegitimate  child ;  only  the  relation  to  the 
father  and  the  paternal  family  was  set  aside:  otherwise 
the  child  attained  the  complete  right  of  the  mother,  and 
this  at  a  time  when  matriarchy  was  again  a  ruling  power. 

3.  This  position  of  the  illegitimate  child  with  full 
rights  as  far  as  the  mother  and  her  family  are  concerned 
is  found  in  our  law,  as,  for  instance,  in  the  German  Civil 
Code.     Earlier  German  systems  of  family  law,  in  con- 
tradiction to  this,  assigned  to  the  natural  child  a  subordi- 
nate  position,   even  as  concerned   his   rights    on    the 
maternal  side  and  denied  him  wholly,  or  in  part,  a  right 
of  inheritance.    This  treatment  cannot  be  justified.    The 
ties  of  blood  are  just  as  strong  in  the  illegitimate  child, 
the  need  of  provision  just  as  urgent,  perhaps  even  more 
so,  as  he  is  left  entirely  to  the  care  of  the  mother,  and 
knows  no  training  but  hers.    Such  harshness  is  also  con- 
trary to  equity,  for  the  blood  unity  of  the  child  demands 
such  treatment  as  should  be  accorded  to  blood  unity. 


§13]  FAMILY  LAW  113 

Full  rights  on  the  maternal  side  of  the  illegitimate  child 
cannot  be  rejected. 

4.  When,  as  regards  legitimate  children,  paternal  law 
came  to  recognize,  and  procreation  in  matrimony  be- 
came the  foundation  of  paternity,  it  followed,  naturally, 
that  the  same  idea  was  applied  to  illegitimate  children; 
and  there  was  a  tendency  to  assign  to  the  father  of  such 
children  certain  legal  duties  and  responsibilities  such  as 
belonged  to  the  father  of  legitimate  children.     The  idea 
was  the  more  natural,  because  in  the  legitimate  marriage 
relation  the  rights  of  the  father  and  mother  were  com- 
bined, and  it  was  felt  to  be  but  just  that  such  a  combi- 
nation should  exist   outside  of  matrimony  as  regards 
the  parents  of  illegitimate  children.     But  this  attempt 
met  with  comprehensible  resistance;   in  the  first  place, 
because  there  are  frequently  obstacles  in  the  way  of 
establishing  the  paternity  of  an  illegitimate  child,  and 
also,  because  no  enduring  relationship  exists  between  the 
mother  and  the  father.     The  fact  made  itself  apparent 
that  the  combined  position  of  father  and  mother  is 
something  quite  different  when  the  father  and  mother 
are  united  in  a  matrimonial  union  than  when  they  stand 
apart  and  remain  separated.     The  connection  of  paternal 
with  maternal  rights  came  to  a  halt  at  the  illegitimate 
child. 

5.  Up  till  now,  these  obstacles  have  only  partly  been 
overcome.     Doubt  as  to  paternity  may,  indeed,  cease 
when  the  father  acknowledges  the  child  as  his  own.  The 
other  difficulty,  on  the  contrary,  must  remain  as  long  as 
the  training  of  children  continues  to  be  purely  a  family 
matter,  and  is  not  undertaken  by  the  State.     But,  if 
the  latter  is  the  case,  there  is  no  longer  any  reason  why 
the  father  of  the  illegitimate  child  should  not  fulfil  the 
same  duties  and  responsibilities  as  the  father  of  legiti- 
mate children.     In  such  a  case,  the  bringing  up  of  the 


114  THE  LAW  OF  PERSONS  [Cn.VI 

child  would  be  carried  out  by  the  State,  because  of  the 
absence  of  a  family.  Such  a  development  should  be 
fostered,  because  it  is  unfair  to  deprive  a  child  of  one 
parent;  and,  at  the  same  time,  it  is  an  offense  against  the 
welfare  of  the  nation,  and  against  cultural  order  if  care 
is  not  taken  to  provide  the  illegitimate  child  with  the 
training  and  education  necessary  to  make  his  energy 
useful  to  society,  and  so  to  bring  him  up,  that  his  latent 
negative  impulses  are  destroyed.  The  improper  treat- 
ment of  illegitimate  children,  the  ostrich-like  policy 
that  fails  to  see  what  valuable  mental  power  is  thus 
being  lost,  has  long  been  a  source  of  deep  social  injury. 

4.    Artificial  Relationships 
(a)    General  Remarks. 

1.  Among  nearly  all  nations,  beside  the  actual  blood 
relationship,  an  artificial  relationship  has  been  recog- 
nized involving  legal  relations  equivalent  to  the  ties  of 
blood.    A  more  detailed   presentation  of  the  subject 
belongs  to  the  history  of  law :  it  is  one  of  the  most  inter- 
esting pages  in  the  evolution  of  humanity. 

2.  We  need  only  emphasize  the  following  points  here : 
(a)     The  artificial  relationship  has  often  given  the 

family  new  vitality  and  courage,  and  even  saved  whole 
tribes  from  decline. 

(6)  As  in  all  important  legal  institutions,  religion 
played  a  large  part  in  establishing  the  artificial  relation- 
ship. 

(c)  Of  the  many  different  kinds  of  artificial  relation- 
ship, foster  paternity  has  already  been  mentioned  (p.  109) . 
Many  kinds  have  died  out,  or  have  attained  importance 
only  in  a  single  case  in  history  (e.g.,  milk  relationship  in 
Islam).  Two  forms  have  attained  universal  historical 
importance,  adoption  and  blood  fraternity  (Bluts- 
bruderschaft) ,  of  which,  however,  the  latter  has  dis- 
appeared from  modern  civilization. 


§13]  FAMILY  LAW  115 

(6)     Adoption. 

1.  Adoption  is  an  institution  of  high  morality;   for 
the  love  between  parent  and  child  is  of   the  highest 
ethical  and  educative  value,  a  source  of  pure  feelings, 
the  starting  point  of  devoted  effort,  an  incentive  to  high 
moral  endeavor,  and  thus  in  itself  produces  and  furthers 
culture.     It  is  just  in  the  soil  of  such  feelings  that  the 
most  important  ideas  germinate,   spring  up,  and  bear 
the  richest  fruit.     Moreover,  the  foster  child  that  thus 
receives  a  better  education  and  training,  usually  is  more 
efficient  than  if  it  were  left  in  disadvantageous  circum- 
stances where  it  might  come  to  an  evil  end. 

2.  It  is  true  that  adoption  would  be  possible  without 
the  law;  it  is  possible  for  anyone  to  take  a  foster  child 
without  any  legal  relation  and  devote  himself  to  it; 
but  the  legal  activity  of  such  a  relation  has  a  far-reach- 
ing  and   very  considerable   psychic  influence.    What, 
otherwise,    only   occurs   occasionally   and   uncertainly, 
thus  becomes  a  regular  institution;  the  child  that  thus 
acquires  rights,  has  a  much  better  position  than  if  it 
were  dependent  on  whim.     Particularly,  it  is  spared  the 
unhappy  fate,  after  the  death  of  its  benefactor,  of  being 
turned  out  and  deprived  of  maintenance,  property,  and 
inheritance. 

3.  Adoption  may  be  so  carried  out  that  the  child  is 
taken  away  from  its  own  family,  and  becomes  a  member 
of  the  family  that  adopts  it.    This  is  desirable  as  long 
as  there  is  strong  family  cohesion;  for  a  double  family 
membership    in    such   cases    is    disadvantageous,   and 
places  the  child  in  a  situation  in  which  it  cannot  thrive. 

It  is  different  where  family  cohesion  is  loose  so  that  a 
number  of  educational  advantages  are  required  outside 
of  the  family,  in  society  and  in  the  State,  from  the  fact 
that  family  relationship  involves  its  members  only  in 
certain  directions. 


116  THE  LAW  OF  PERSONS  [Cn.Vl 

When  this  is  the  case,  the  retention  of  certain  rights 
in  the  child's  own  family  is  not  only  possible,  but  desir- 
able: there  is  no  reason  for  depriving  anyone  of  more 
than  is  necessary  to  accomplish  certain  ends.  Hence 
modern  law  has  led  to  the  introduction  of  a  system  of 
incomplete  adoption,  under  which  the  adopted  child 
retains  as  many  rights  as  possible  in  its  own  family,  and 
receives  in  addition  its  adoptive  rights. 

4.  A  further   question   concerns  whether  the  child 
enters  into  a  relation  only  with  the  father  that  adopts  it, 
or  also  with  the  father's  family.     Modern  legal  systems 
have  denied  the  latter,  in  consideration  of  the  fact  that 
the  child  retains  rights  in  its  own  family.     It  would, 
however,    be    perfectly    conceivable,    and   not   without 
value,  if,  by  a  joint  family  resolution  or  something  of  the 
sort,  the  adopted  child  should  also  be  granted  rights    as 
regards  the  other  members  of  the  family.     The  adopted 
child   would   thus  be  received  into  the  whole  family 
connection;     as    was    the    case,    for   instance,    in    the 
Aetleidung  of  the  old  Norse  law. 

5.  With  the  growth  of  the  system  of  incomplete  adop- 
tion, another  principle  has  also  been  developed :  that  the 
effects  of  adoption  are  one-sided,  inasmuch  as  the  child 
is  indeed  subject  to  parental  authority  in  the  family 
that   adopts    him;    but,   in    other   respects,   he   alone 
acquires  rights,  while  the  father  by  adoption  and  his 
family  have  no  further  claim  on  the  child.     Here,  too, 
it  might  be  asked,  whether  it  would  not  be  desirable  to 
extend  this  arrangement ;  for  without  doubt  the  connec- 
tion becomes  closer  when  claims  exist  on  both  sides. 
It  is  true  that  this  would  also  have  its  disadvantages,  since 
adoption  might  thus  become  a  matter  for  speculation, 
so  that  motives  of  avarice   might   find  a  footing,  and 
corrupt  this  beneficial  institution.     This  danger,  how- 
ever, might  be   averted  by  careful  examination  into 


513]  FAMILY  LAW  117 

each  case,  and  possible  prohibition  on  the  part  of  the 
authorities. 

(c)     Blood-Fraternity. 

1.  As  an  artificial  relationship,  blood-fraternity  has 
played  an  important  part  in  the  life  of  nations.     The 
original  idea  was  that  the  "blood-brothers"  were  closer 
to  each  other  than  real  brothers,  and  the  institution  has 
been  a  source  of  the  finest  self-sacrifice,  of  ennoblement, 
of  mutual  devotion,  of  the  purest  unselfishness. 

2.  Unfortunately,  the  legal  institution  has  died  out; 
it  was  much  used,  and  also  much  abused;  it  became  the 
spring  that  set  kin-revenge  in  motion,  a  means  of  further- 
ing rebellious  acts,  and  the  connecting  element  in  wild 
and  destructive  societies. 

Nevertheless,  its  disappearance  is  greatly  to  be  re- 
gretted, for  such  an  incentive  to  unselfishness,  such  an 
aid  in  all  the  conditions  of  life,  must  always  be  recog- 
nized as  promoting  culture;  just  as  any  ideal  in  itself 
strengthens  the  cultural  power  of  a  people,  in  so  far  as 
it  is  not  too  closely  mixed  with  destructive  elements. 

3.  Here,  too,  we  must  repeat,  that  such  a  psychic 
relation  can  exist  without  legal  protection  or  legal  form. 
But  what  was  said  of  adoption  also  applies  in  this  case. 
It  is  of  far-reaching  importance,  when  the  law  takes  hold 
of,  and  shapes  such  institutions;    they  thereby  become 
normal,  and  lose  their  exceptional  character,  and  their 
significance  is  greatly  enhanced,  if  what  one  man  expects 
from  another  is  also  required  by  law.     The  rigid  legal 
manner  of  creating  and  dissolving  the  relation  gives  it 
support  and  strength,  and  especially  a  series  of  impor- 
tant legal  consequences  may  thus  follow ;  as,  for  instance, 
if  a  blood-brother  is  privileged  to  refuse  his  testimony, 
or  if  the  shielding  of  a  blood-brother  is  as  unpunishable 
as  that  of  a  real  relation,  or  if  the  duty  of  mutual 


118  THE  LAW  OF  PERSONS  [Cn.VI 

support,  and  perhaps  also  a  right  of  inheritance  exist.  In 
all  such  cases,  the  law  may  be  appealed  to,  and  the  uncer- 
tainty and  vagueness  of  relations  that  exist  merely  in 
fact  are  removed  by  legal  regulation. 

4.  Will  this  institution  perhaps  be  revived?  Unless 
there  is  something  in  life  that  supports  them,  such  cus- 
toms cannot  be  created;  the  ardor  and  enthusiasm  that 
lead  to  such  an  ideal  cannot  be  artificially  produced; 
they  must  proceed  from  within  the  nation.  Sexual  ele- 
ments rarely  entered  into  the  relation  (as  among  the 
Greeks),  nor  would  they  add  to  its  nobility;  for  sexual 
commerce  between  members  of  the  same  sex  corrupts 
rather  than  develops  the  mind. 

5.    Sub stitutive  Family  Law 

1.  Family  training  should  be  fostered  as  far  as  pos- 
sible, even  if  there  are  no  parents  living ;  other  members 
of  the  family  then  take  the  place  of  the  parents.     No 
difference  between  parental  authority  and  guardianship 
originally  existed.     It  is  already  a  step  taken  from  family 
training  towards  State  training,  if,  in  such  cases,  a  guar- 
dian is  appointed  by  the  State,  who,  as  an  agent  of  the 
State,  sees  to  it  that  the  child  is  cared  for,  and  manages 
his   property.     Guardianship    still    retains    much    that 
belonged  to  the  former  family  regime,  it  is  true,  for 
which  reason  I  speak  of  substitutive  family  law. 

2.  The  supervision  of  the  guardian  alters  very  much 
in  the  different  stages  of  social  organization.     Where  it 
is  the  family  that  undertakes  the  chief  cultural  duties, 
it  is,  of  course,  a  council  of  the  family  that  supervises, 
and  determines  the  leading  principles  for  the  care  of  the 
child.     But,  when  the  power  of  the  family  is  dissipated, 
the  State  or  community  must  step  in,  and  according  to 
where  the  greater  expert  knowledge   and   the  greater 
readiness  to  serve  are  to  be  expected,  one  or  the  other 


5131  FAMILY  LAW  119 

system  will  be  preferred;  accordingly,  it  is  sometimes 
the  courts,  sometimes  the  municipal  authorities,  etc., 
that  are  entrusted  with  these  duties.  Here,  too,  of  course, 
everything  is  in  a  state  of  development.  Sometimes, 
the  co-operation  of  the  family  is  desirable;  wherefore, 
for  instance,  according  to  German  law,  the  guardian- 
ship court  must  confer  with  the  family  in  important 
cases,  and  under  some  circumstances  a  family  council 
may  be  appointed,  at  the  head  of  which,  however,  stands 
the  guardianship  judge.  Although  in  Latin  countries 
the  family  council  plays  a  more  important  part,  it  is 
only  a  survival,  and  is  no  longer  felt  to  be  the  adequate 
form  even  there. 


120  THE  LAW  OF  PROPERTY.       [CH.VII 

CHAPTER  VII 

THE  LAW  OF  PROPERTY 

SECTION  XIV 

I.    THE  LAW  OF  THINGS 

1.    General  Remarks 

1.  Ownership  in  the  legal  philosophical  sense  is  an 
individualistic  relation  of  a  legal  subject  to  a  material 
object,    and    presupposes    that    the  material   world  is 
apportioned,  and  does  not  serve  the  common  enjoyment 
of  all. 

2.  Whether  such  a  distribution  is  justified  or  not, 
like  all  questions  of  a  legal  philosophical  nature,  cannot 
be  definitely  settled  in  a  universally  applicable  manner. 
It  depends  upon  the  stage  that  the  development  of  cul- 
ture has  reached,  and  also  on  whether  the  latter  is 
collective  or  individualistic  in  character.    The  more  it  par- 
ticularizes, the  more  vigorous  will  be  the  idea  of  prop- 
erty, and  the  deeper  will  its  roots  strike  into  the  law 
and  into  the  hearts  of  all.     It  is  by  no  means  necessary 
that  all  natural  objects  should  be  distributed  in  the 
same  manner;  it  is  possible  that  an  abundance  of  things 
may  still  be  held  in  common,  while,  as  regards  the  rest, 
particularization  has  already  gained  ground. 

Movable  things,  for  instance,  are  far  more  liable  to 
particularization  than  are  immovables ;  for  which  reason, 
it  is  comprehensible  that  nations  have  long  recognized 
movable  property,  while  for  centuries  the  ownership 
of  land  was  still  collective.  Some  movable  things 
are  closely  connected  with  each  individual's  private 


§14]  THE  LAW  OF  THINGS  121 

mode  of  life  and  although  it  is  still  possible  that  they 
should  belong  to  the  collectivity  and  only  be  loaned  to 
the  individual;  yet,  the  carrying  out  of  this  idea 
presupposes  such  a  high  degree  of  collective  spirit, 
that  without  it  no  happiness  and  no  welfare  would  be 
possible. 

Land,  on  the  contrary,  as  long  as  it  is  merely 
wandered  over  in  the  search  for  food,  may  well  remain 
common  property;  especially,  if,  as  in  primitive  times, 
the  population  is,  and  continues  to  be  scanty,  and  the 
danger  of  conflicts  is  slight.  But,  even  when  agricul- 
ture is  practised,  and  the  land  is  under  cultivation,  it  is 
possible,  though  collective  spirit  may  not  be  strong,  to 
retain  community  ownership  of  land  and  field,  with 
common  cultivation  and  common  pasturages.  And,  even 
when  cultivation  is  more  individualistic  in  character,  a 
strong  element  of  collective  activity  will  still  remain; 
particularly,  when  the  equipment  of  the  individual  is 
not  adequate,  and  he  requires  the  help  of  others  in  cul- 
tivating the  soil,  and  overcoming  the  obstacles  of  nature. 
Even  when  the  cultivated  land  has  already  been  dis- 
tributed, large  tracts  will  still  remain  for  collective 
use.  Thus,  it  will  be  with  wood  and  pasture,  private 
ownership  of  these  long  remaining  disadvantageous, 
because  individual  management  only  gradually  develops 
to  the  point  where  it  can  include  also  this  kind  of 
territory. 

3.  Intellectual  productions  both  esthetic  and  techni- 
cal also  may  be  subject  to  private  ownership.  Esthetic 
goods  again  may  be  writings,  music,  or  paintings;  techni- 
cal productions  are  inventions,  or  useful  models  which 
accomplish  certain  ends,  and  thus  are  able  to  fulfill  cer- 
tain human  purposes.  But  all  these  goods  are  not 
entirely  individualistic;  there  is  a  certain  universal 
human  element  in  them,  inasmuch  as  no  one  can  create 


122  THE  LAW  OF  PROPERTY         [Cn.VlI 

anything  without  the  aid  of  the  mental  achievements 
of  earlier  periods.  But  this  does  not  prevent  his  having 
for  his  own  whatever  he  produces  independently  with 
this  raw  material. 

The  term  intellectual  property  has  been  used  in  this 
connection,  but  it  is  more  accurate  to  speak  of  rights  in 
immaterial  things.  It  is  peculiar  to  them  all  that  they 
are  not  permanent  but  temporary;  and  they  are  so,  not 
by  chance,  or  by  positive  legal  provision,  but  of  neces- 
sity, as  such  mental  achievements  become  in  time  uni- 
versal cultural  possessions,  and  the  formative  material 
of  human  activity. 

This  subject  is  fully  treated  in  the  "Lehrbuch  des 
biirgerlichen  Rechts"  and  need  not  be  considered  here, 
since  an  exposition  of  civil  law  is  not  possible  without 
taking  into  consideration  its  legal  philosophical  elements. 
For  this  reason,  my  writings  on  the  subject  contain  the 
legal  philosophical  explanations  that  are  necessary  to 
an  understanding  of  it. 

4.  Not  all  goods  are  amenable  to  detachment  and 
special  title  in  the  same  way.  There  are  some  that 
cannot  be  detached  at  all,  and  others  that  can  be  so  only 
for  a  time.  There  are  things  that  are  indisputably 
intended  to  be  universal,  because  the  conditions  of 
human  life  rest  upon  them ;  as,  for  instance,  the  air  and 
the  sea:  these  cannot  be  isolated,  and  therefore  cannot 
be  made  the  objects  of  private  rights.  Other  goods  may, 
indeed,  be  detached  for  a  time,  but  their  tendency  is  to 
become  universal,  inasmuch  as  the  purpose  for  which 
they  are  designed  would  make  the  enjoyment  of  them 
general.  These  include,  as  we  have  said,  immaterial 
things,  inventions,  etc.;  it  is  possible  that,  for  a  time, 
they  may  be  the  object  of  a  special  right,  but,  if  they 
prove  to  be  enduring,  it  is  absolutely  necessary  that 
society  should  have  access  to  them,  if  for  no  other 


§  14  ]  THE  LAW  OF  THINGS  123 

reason,  because  they  help  to  form  the  foundations  of 
intellectual  or  technical  culture,  and  new  conditions  of 
life  are  based  upon  them.  But,  if  an  invention  is  not 
successful,  and  proves  to  be  valueless,  its  reversion  is  the 
more  necessary,  for  unproductive  rights  are  a  useless 
hindrance,  and  a  source  of  human  detriment. 

One  means  of  preventing  the  isolation  and  separatioiK 
from  commerce  of  certain  goods  was  the  taboo.  j/ 

Taboo,  in  this  narrower  sense,  the  taboo  of  things; 
arose  thus:  by  command  of  the  priests,  or  the  chief,  a 
thing  was  assigned  to  a  higher  circle  of  life.     Thus,  a 
kind  of  consecration  was  established,  the  object  being 
dedicated  to  the  cult,  or  the  royal  service.     In  this  wayi 
it  was  possible  to  reserve  a  number  of  things  for  higher! 
State  or  religious  use,  which  would  have  performed  much  ) 
less  service  if  used  for  the  ordinary  needs  of  life.     In  this\ 
respect,  too,  the  taboo  was  extremely  promotive  of  human  i 
culture.     (Compare  p.  67.) 

5.  Running  water  is  common  property;  yet,  it  may 
become  subject  to  private  right,  though  not  in  the 
manner  formerly  thought;  that  is  to  say,  that  the  wave 
of  running  water  as  it  progresses,  belongs  first  to  A, 
then  to  B,  then  to  C.  The  idea  of  such  constantly 
changing  ownership  is  just  as  absurd  as  if  we  should 
assume  that  game  belongs  to  the  man  on  whose  property 
it  happens  to  be  at  the  moment.  Property  that  would 
thus  change  hands,  as  the  wind  changes,  would  be  too 
much  at  variance  with  the  idea  of  ownership  altogether. 
On  the  other  hand,  it  must  be  acknowledged  that  private 
rights  in  water  and  in  its  forces  may  exist,  and  especially 
is  this  true  of  the  descent  of  water  and  the  power  thus 
produced.  Such  a  right  can  only  be  conceived  of  as  an 
immaterial  right,  similar  to  the  right  in  electricity,  and 
belongs  either  to  the  owner  of  the  river  bed  or  to  another, 
and  entitles  the  holder  to  the  exclusive  use  of  the  tem- 
porarily and  locally  established  power. 


124  THE  LAW  OF  PROPERTY        [CH.VII 

6.  Individualization  requires  an  apportionment  of 
personal  goods,  so  that  each  individual  may  live  his  life, 
and  develop  his  powers.  For  humanity  cannot  attain 
its  aims,  unless  the  springs  are  uncovered  that  lie  dor- 
mant in  every  single  being,  and  that  are  inactive  so  long 
as  the  individual  is  held  fast  in  collectivity.  Hence, 
much  must  take  place  now  that  formerly  was  not  known. 
Training  and  education  assume  an  entirely  different 
aspect,  the  relation  between  the  sexes  is  elevating  and 
beneficial  in  its  influence,  friendship  becomes  brother- 
hood, and  an  abundance  of  new  associations  serve  to 
guide  individual  efforts  into  common  ways,  in  order  thus 
to  promote  multifarious  intellectual  interests.  Parental 
rights,  household  rights,  family  and  guardianship  rights, 
marriage  rights,  and  association  rights  will  develop, 
and  thus  contribute  to  the  growth  of  new  and  mighty 
cultural  possessions.  And  just  as  the  protection  of 
ownership  will  strengthen,  to  the  utmost,  the  power  of 
production  as  regards  material  goods,  so,  too,  the  pro- 
tection of  mental  creations  will  have  a  powerful  effect; 
for  the  individual  must  rule  as  an  individual,  he  must 
enjoy  the  fruit  of  his  labor;  in  this,  as  in  other  respects, 
sound  individualism  must  govern  mankind,  and  act  as 
an  incentive  to  new  achievements. 

7.  In  this  manner,  tremendous  forms  of  activity  will 
arise,  and  with  them  the  constant  new  production  of 
goods  on  the  one  hand,  and,  on  the  other,  the  constant 
new  distribution  that  makes  it  possible  for  goods  to  be 
held  sometimes  individually,  and  again  collectively,  so 
that  they  become  productive  and  useful.  For  it  is  one 
of  the  qualities  of  economic  values,  that  they  are  some- 
times more  effective  when  isolated,  sometimes  when 
held  in  a  wisely  planned  combination  of  ownership,  than 
when  they  are  subject  to  the  indiscriminate  participa- 
tion of  all.  The  chief  aim  is  now  to  develop  to  the 


§  14]  THE  LAW  OF  THINGS  125 

utmost  individual  property,  now  to  achieve  those  com- 
binations that  are  fitted  to  produce  much  that  is  new 
and  significant.  Culture  with  individualization,  and 
with  a  well  planned  combination  ownership  of  goods,  is 
the  permanent  source  of  new  vital  advantages  and  new 
productions  of  life. 

8.  The  growth  of   individual   ownership,  then,   has 
been  an  important  means  of  promoting  human  culture, 
just  as  has  the  individualization  of  men,  for  it  has  vastly 
increased  and  accelerated  human  powers.     By  means  of 
greater  variety,  a  wealth  of  relations  has  been  created, 
and  at  the  same  time  man's  command  of  the  goods  of  the 
earth  has  been  tremendously  strengthened.     For  now 
much  more  is  thought  out,  much  more  is  planned  and 
tried,  than  formerly;  and,  above  all,  that  sound  egoism 
appears  which  controls  civilized  humanity  and  will  not 
again  forsake  it.     For  what  a  man  owns  for  himself  and 
to  his  own  advantage,  he  possesses  with  a  double  affec- 
tion, and  he  will  make  far  greater  efforts  to  obtain  it, 
than  if  others  besides  himself,  or  the  whole  community, 
were  to  profit.     Here  too,  of  course,  the  cunning  of  the 
cosmic  system  creates  fancies  and  dreams.     It  promises 
man  all  kinds  of  delights,  when  he  shall  have  obtained 
certain  goods,  and  after  he  has  obtained   them,  dis- 
illusionment   and    disappointment    follow.      But    this 
imaginative  life  has  always  been  exceedingly  promotive 
of  culture. 

9.  The  individual  ownership  of  land  often  requires 
improvement;    for  great  as  are  the  advantages  of  a 
secure  apportionment  of  property,  it  thereby  becoming 
possible  for  the  individual  owner  to  make  use  of  the 
thing  in  every  way,  and  to  develop  its  economic  powers, 
yet  the  geographical  situation   and  economic  position 
of  lands  frequently  demand   that   other   property   be 
involved;  because  otherwise  land,  sometimes,  could  not 


126  THE  LAW  OF  PROPERTY        [Cn.VII 

be  developed  to  the  utmost,  and  a  part,  at  least,  of 
its  uses  might  be  cut  off.  Think  of  a  piece  of  land,  on 
which  there  is  no  water,  and  that  can  only  obtain  it  by 
conducting  it  through  other  property,  or  that  can  be 
connected  with  electric  current  only  in  the  same  way. 
In  such  and  similar  cases,  a  very  slight  restriction  or 
encumbrance  on  the  one  side  often  means  a  tremendous 
advantage  on  the  other.  In  order  that  such  lands  can 
be  developed,  praedial  servitudes  have  been  introduced; 
that  is,  privileges,  which  for  the  benefit  of  one  property 
encumber  another,  and  which  entitle  the  holder  to  erect 
certain  kinds  of  works  on  this  other  property,  to  use  it  in 
certain  ways,  or  to  demand  that  the  other  property 
shall  not  be  altered  to  interfere  with  the  use  of  the  first 
property.  These  praedial  servitudes  are  attached  to 
land,  and,  accordingly,  we  speak  of  pradium  dominans 
and  pr&dium  serviens.  Legally,  of  course,  the  matter 
is  so  arranged,  that  the  holder  of  the  pr odium  domi- 
nans is  also  entitled  to  the  servitude.  But  this  must 
not  be  understood  as  meaning  that  the  right  attaches  to 
the  owner  of  the  pr&dium  dominans;  on  the  con- 
trary, whoever  owns  the  right  in  the  dominant  land, 
for  the  exercise  of  which  the  other  piece  of  land  must  be 
utilized,  can  make  use  of  the  servitude.  Hence,  this 
servitude  cannot  be  said  to  belong  only  to  the  owner, 
but  to  all  who  have  rights  in  the  dominant  land  accord- 
ing to  the  nature  of  their  rights;  and  that  is  what  is 
meant,  when  we  say  that  the  land  itself  is  the  entitled 
subject. 

The  further  explanation  of  this  point  belongs  to  the 
civil  law,  and  is  contained  in  the  "Lehrbuch  des  burger- 
lichen  Rechts";  I  have  also  given  it  in  part  elsewhere. 
It  is  essential  that  the  legal  system  should  encourage 
landed  property  in  the  greatest  possible  way;  yet,  on 
the  other  hand,  it  is  equally  necessary  that  the  prcedium 


$14]  THE  LAW  OF  THINGS  127 

serviens  should  be  encumbered  as  little  as  possible  so 
that  its  own  use  may  not  be  interfered  with.  Especially 
should  the  desire  to  transfer  the  servitude  to  other  land 
be  met,  in  as  far  as  this  can  be  done,  without  detracting 
from  the  advantages  of  the  dominant  land;  for  here, 
too,  that  law  is  the  best  that  most  effectively  balances 
the  most  opposing  interests. 

2.     Acquisition  and  Loss  of  Ownership 
(a)     Original  Acquisition. 

1.  The  manner  in  which  the  legal  system  admits  the 
individual  to  ownership,  relates  to  its  historical  develop- 
ment,   and   is  nowhere   based   entirely  on   reasonable 
grounds.     It  is  a  factor  in  the  origin  of  States,  and 
cannot  be  understood  by  itself  alone,  but  only  as  a  part 
of  the  great  process  of  the  national  creation  of  culture. 
With  conquering  nations,  it  is  the  power  of  the  con- 
querors that  is  determinative ;  and  the  principle  of  inter- 
national law,  that  possession  once  acquired  contains  a 
certain  element  of  reason,  and  cannot  be  altered  at  will, 
also  applies  here.     But  when  material  goods  have  to  an 
important  degree  entered  into  human  commerce,  our 
concern  is  no  longer  with  the  original  but  with  the 
derivative  acquisition. 

2.  Nevertheless,  even  now,  when  reasonable  regula- 
tion is  possible  and  conditions  of  peace  are  established, 
there  are  still  cases  of  original  acquisition;   and  in  this 
connection,  it  must  be  said,  that  it  is  especially  in  accord- 
ance with  the  law  that  a  man  should  become  the  owner 
of  what  he  gains  by  his  own  efforts,  by  connecting  his 
individuality  with  the  object.     This  is  the  acquisition  of 
ownership  by  labor,  a  doctrine  that  has  been  defended  by 
Locke,  among  others,  and  which  cannot  be  exaggerated 
except  in  so  far  as  this  mode  of  acquisition  cannot  be 
considered  exclusive. 


128  THE   LAW  OF   PROPERTY        [CH.VII 

3.  As  soon  as  mankind  is  individualized,  the  work  of 
each  man  becomes  individualized;  that  is,  he  wants  and 
may  have  his  work  to  himself,  and  need  not  suffer  it  to 
be  returned  to  the  collectivity.     In  the  acquisition  of 
ownership,  the  principle  follows  of  itself,  that  if  a  man 
has  put  his  work  into  a  natural  product,  by  transferring 
it  from  the  world  of  nature  to  the  world  of  universal 
human  control,  or  by  otherwise  increasing  its  useful- 
ness, and  intensifying  its  character  as  wealth,  he  can 
demand  that  his  relation  to  it  should  be  nearer  than  that 
of  others,  because  he  has  put  a  part  of  his  personality 
into  it,  and  thus  given  it  something  of  himself. 

From  this  there  follows  the  justification  of  acquisition 
of  ownership  by  taking  possession,  and  by  improvement, 
the  principle  being  upheld  that  it  is  not  the  amount  of 
work  that  is  of  importance,  but  the  usefulness  resulting 
from  the  work,  that  is,  that  the  thing  is  made  sus- 
ceptible of  human  interests,  with  greater  or  lesser 
advantages. 

For  the  taking  possession  also  must  be  regarded  as  a 
kind  of  work ;  work  must  be  understood  to  mean  every- 
thing that  puts  something,  either  in  its  original  or  in  an 
improved  form,  within  the  reach  of  human  enjoyment 
and  control.  Above  all,  what  is  called  improvement  or 
specification  must  here  be  taken  into  consideration. 
Here  work  even  appears  as  the  binding  and  essentially 
determinative  element  of  the  matter,  as  opposed  to 
ownership  of  the  material,  and  may  even  overcome  the 
latter  unless  the  material  is  of  such  importance  that  it  is 
able  to  withstand  the  attack.  The  measure  of  impor- 
tance, however,  is  determined  by  the  relative  values  in 
the  thing  that  consists  of  materials  and  work. 

4.  Another    basis    of    acquisition    of    ownership    is 
usucaption.      In  this  process,   time  gives  its  sanction 
to  the  relation  of  the  individual  to  the  thing;   time  and 


514]  THE  LAW  OF  THINGS  129 

everything  that  transpires  within  it.  For  in  time, 
cultural  processes  go  on,  in  which  material  things  play 
an  auxiliary  part,  so  that  they  become  a  constituent 
part  of  cultural  achievement.  To  remove  things  from 
this  connection  would  be  contrary  to  culture;  usucap- 
tion  must  prevent  that. 

(b)     Barter  and  its  Consequences. 

1.  In  order  that  property  may  fulfill  its  cultural 
purposes,  it  must  be  exchangeable;  for  only  thus  does 
it  become  possible  for  wealth  to  reach  the  place  where 
it  will  be  most  effective.  This  has  still  further  advan- 
tages, for  it  infinitely  increases  productive  power.  A 
man  does  not  produce  only  what  he  can  use  himself, 
but  considerably  more,  so  that  he  can  exchange  with 
others  to  his  own  advantage.  It  is  only  in  this  way 
that  work  systematically  designed  for  exchange,  and 
the  division  of  labor  that  it  involves,  can  arise;  and 
with  it  are  connected  the  recognized  advantages  of  the 
division  of  labor.  The  workman  attains  greater  skill; 
he  adjusts  his  life  to  his  work;  makes  the  necessary 
arrangements  to  carry  it  on,  on  a  large  scale;  and  will 
therefore  produce  more  and  better  work  than  under 
other  conditions.  And,  as  this  applies  to  others  as 
well,  three,  four,  or  six  times  as  much  will  be  produced 
as  if  each  man  were  obliged  to  obtain  for  himself  all  the 
necessary  natural  products.  This  division  of  labor,  which 
was  recognized  even  by  Plato  ("De  Republ.,"  ii)  and 
Aristotle  in  his  "Politics,"  as  a  means  of  promoting 
culture,  and  which  was  excessively  valued  by  Adam 
Smith  in  the  eighteenth  century,  presupposes,  of  course, 
that  a  man  can  exchange  those  goods  that  he  does  not 
need  for  others  for  his  own  personal  use.  This  possi- 
bility of  exchange  is  also  necessary;  because  if  a 
man's  production  is  one-sided,  his  other  needs  are  not 


130  THE   LAW  OF   PROPERTY        [Cn.VII 

provided  for,  and  he  requires  the  addition  of  things  that 
are  produced  by  others.  For  this  reason,  then,  wealth 
becomes  transferable. 

2.  The  transfer  of  a  right  is  distinguished  from  its 
re-founding,  in  that  the  special  peculiarity  of  the  right 
that  has  been  formed  through  its  original  founding  and 
previous  destinies  does  not  disappear,  but  continues  in 
the  possession  of  a  later  entitled  subject.     Hence,  we 
cannot  say  that  the  right  of  the  other  is  simply  a  new 
right ;   as  a  new  right  it  is  at  the  same  time  a  continua- 
tion of  the  old  right  with  its  peculiar  qualities. 

3.  These  qualities  may  be  entirely  maintained  or 
only  a  few  may  be  taken  over,  and  the  right  held  by  the 
successor  may  be  more  or  less  stripped  of  them.     It  is 
therefore  possible  that  the  successor  may  obtain  more 
rights  than  his  predecessor  had;    for  the  legal  system 
often  has  reason  to  depart  from  the  maintenance  of  the 
original  situation,  and  to  assign  to  the  successor's  act 
of  acquisition  a  significance  that  exceeds  it. 

One  main  reason  for  this  is  public  confidence  in  con- 
nection with  the  certainties  that  some  transfers  offer, 
so  that  the  transferee  expects,  and  according  to  the 
ideas  of  commerce,  is  justified  in  expecting,  that  he  is 
procuring  a  complete  right  unrestricted  by  its  former 
particularities. 

is  a  complete  mistake  to  assume  that  the  Roman 
principle,  according  to  which  no  one  can  transfer  more 
\     rights  than  he  himself  has,  is  a  universally  applicable 
\  one,  rooted  in  the  nature  of  the  matter.    That  can  only 
be  asserted  by  a  superficial  legal  view.    On  the  contary,  it 
is  very  easily  possible  that  the  successor  may  acquire  more 
rights  than  his  predecessor  had;  and  just  in  this  lies  that 
peculiarity  on  which  the  security  of  commerce  is  based. 

This  principle  of  acquisition  also  leads  to  loss  of  own- 
ership, and  this  subject  is  dealt  with  under  the  extinc- 
tion of  rights,  p.  133. 


§14]  THE  LAW  OF  THINGS  131 

4.  The  transferability  of  ownership  is  the  cause  of 
the  differences  of  wealth,  and  is  largely  the  source  of 
the    tremendous    inequalities    and    abuses    that    they 
involve,  for: 

(a)  One  man  will  be  fortunate,  the  other  unfortunate, 
in  handling  his  wealth. 

(6)  Some  men  in  case  of  need,  or  for  lack  of  judg- 
ment, will  dispose  of  their  wealth  for  an  inadequate  or 
temporary  equivalent. 

Added  to  this,  is  the  right  of  succession,  which  will 
be  discussed  later,  and  which  is  also  a  great  source  of 
inequality,  if  only  because  in  one  family  the  inheritance 
falls  to  two,  in  others  to  six,  eight  or  ten  heirs. 

This  inequality  cannot  be  removed,  it  can  only  be 
lessened,  and  this  is  attempted  in  several  ways: 

(a)  The  condition  of  the  laborer  is  improved,  thus 
making  it  possible  for  him,  in  spite  of  the  lack  of  capital, 
to  work  his  way  up  and  out. 

(b)  The  wealth  of  foundations  or  other  permanent 
funds  are  used  to  aid  persons  who  lack  neither  the  ability 
nor  the  willingness  to  work,  but  merely  the  principal 
means. 

(c)  In  times  of  pressure  the  needy  are  cared  for, 
thus  preventing  their  becoming  entirely  impoverished. 

(d)  Above  all,  however,  by  social  cohesion  the  weak 
are  enabled  to  help  themselves,  the  small  capitalists  to 
aid  one  another,  and  thus  the  progress  of  all  is  promoted. 

5.  All  these  endeavors  depend  on  the  principle  of 
development  mentioned    above,    according    to    which 
individualization  always  makes  again    for  collectivity, 
and  inequality  for  equality.    But,  of  course,  no  civilized 
State  will   give  up  the  achievements  that   have    been 
accomplished  by  centuries  of  effort,  unless,  indeed,  history 
should  again  commit  one  of  its  illogical  sins,  and  that  the 
mind  of  man  should  wander  again  in  error,  and  not  return 


132  THE  LAW  OF  PROPERTY        [CH.VII 

to  the  consciousness  of  its  high  cultural  duties  until  after 
centuries  had  elapsed.  Private  property,  then,  must 
remain,  but  by  co-operation  it  is  again  socialized;  and 
just  as  work  gave  it  dominant  control,  so  too  it  is 
united  work  that  confronts  it,  as  a  new  and  powerful 
factor,  and  new  forms  arise  under  the  tremendous 
activity  of  generations.  These  alliances  and  unions  and 
their  significance  have  already  been  spoken  of  above, 
(p.  124  (7).) 

6.  Sometimes  the  operation  of  mines  is  combined 
with  land-ownership;  sometimes  mines  are  worked  inde- 
pendently, and  are  either  made  subject  to  State  manage- 
ment, or  are  operated  simply  under  mining  rights.  In 
this  respect,  too,  no  definite,  exclusively  just  system  can 
be  established.  Only  the  following  must  be  noted : 

Separation  of  mining  from  land  ownership  has  great 
advantages  because,  of  course,  the  veins  do  not  coin- 
cide with  the  land  boundaries,  and  because  the  technic 
and  capitalization  of  agriculture  are  so  absolutely  differ- 
ent from  those  of  mining  that  a  combination  of  the  two 
must  be  more  or  less  detrimental.  Whether,  then,  free- 
dom of  mining  or  a  government  monopoly  is  introduced 
will  depend  largely  on  whether,  in  the  individual  case, 
freedom  or  constraint  is  the  more  practical.  Mining 
freedom  may  at  times  contribute  greatly  to  the  dis- 
covery and  development  of  mineral  resources;  on  the 
other  hand,  by  way  of  combinations,  it  may  lead  to  all 
the  evils  of  monopolization  and  trust  control.  The  price 
of  necessary  minerals  like  coal  may  be  artificially  raised, 
and  especially  foreign  enterprise  may  obtain  control  of 
domestic  resources  to  an  undesirable  extent.  When 
indications  of  such  a  state  of  affairs  appear,  it  is  well  for 
the  State  to  lay  its  hand  on  the  treasures  of  the  country, 
and  to  regulate  the  acquisition  of  mining  rights  by  grant- 
ing concessions. 


§14]  THE  LAW  OF  THINGS  133 

(c)     Extinction. 

1.  Whatever  exists  is  worthy  to  perish,  and  this  in- 
cludes also  ownership.     Cases  may  occur  in  which  owner- 
ship must  at  once  disappear.     The  State,  indeed,  should 
not  interfere  arbitrarily  and  should  give  compensation 
whenever  it  expropriates  anything,  but  this  is  a  principle 
that  does  not  belong  to  the  doctrine  of  ownership  but  to 
the  just  distribution  of  burdens.     If  the  State  needs  the 
property  of  an  individual,  it  must  not  burden  this  person 
with  more  than  others  have  to  carry,  but  must  distribute 
the  charges ;  that  is  to  say,  it  must  assign  an  equivalent  to 
the  person  from  whom  the  expropriation  is  made  so  that 
he  need  not  contribute  more  to  the  furtherance  of  the 
public  interest  than  do  others.     (Compare  p.  210.) 

2.  Far  more  important,  however,  is  the  cessation  of 
ownership    brought    about    by   its    collision    with    the 
demands  of  commerce.     There  are  many  cases  when 
ownership  must  bow  to  the  interests  of  third  persons 
who  act  in  good  faith,  and  where  especially  institutions 
connected  with  commerce  exist  which  because  of  their 
public  character  require  security  in  the  acquisition  of 
ownership  and  where  the  transferee  gets  as  much  right 
as  he  can  expect  under  these  circumstances.     (Com- 
pare p.  130(2).) 

3.  This   collision,    between   ownership   on   the   one 
side,  and  the  needs  of  commerce  on  the  other,  has  given 
rise  to  all  those  principles,  that  make  the  transferee 
who  acquires  in  good  faith  the  owner  without  regard 
to  the  ownership  of  the  transferror,  so  that  the  actual 
owner  suffers  the  loss.1 

4.  This  acquisition  of  a  right  is  connected  with  the 
dual  system  of  legal  rights  and  with  the  principles  of 
transferability,  both  of  which  have  been  dealt  with  above. 
(Compare  p.  87  and  p.  130.) 

i Binding's  effusion  on  the  injustice  of  acquiring  property  from  one 
who  is  not  the  owner  has  been  characterized  by  Neube^ker,  "Archiv  f. 
Strafrecht,"  55,  p.  146. 


134  THE  LAW  OF  PROPERTY        [Cn.VH 

SECTION  XV 
II.     THE  LAW  OF  OBLIGATIONS 

FIRST  DIVISION 
THE  LAW  OF  OBLIGATIONS  IN  GENERAL 

1.    Foundations  of  the  Law  of  Obligations 

1.  The  legal  bond  that  is  formed,  when  an  obligor 
takes  upon  himself  an  obligation,  and  thus  places  himself 
under  the  compulsion  of  the  law,  is  necessary  to  com- 
merce, hence,  also,  to  cultural  order.     No  culture  can 
exist  without  such  a  law  of  obligations,  and  especially 
no  advanced  culture  in  which  wealth  is  produced,  not 
mainly  by  those  who  enjoy  it,  but  by  other  persons. 
It  is  the  province  of  the  law  of  obligations,  in  these  cir- 
cumstances,  to  provide  that  wealth  shall  come  either 
directly  or  indirectly  into  the  possession  of  those  who 
can  employ  it.     (Compare  p.  129.) 

2.  Obligatory    relations,  therefore,  are   based  on   a 
system  of  individual  economic  spheres,  and  are  intended 
to  place  these  in  a  permanent  relation  to  one  another,  so 
that  they  are  able  to  accomplish  more  than  if  they  were 
separated  and  isolated:    in  other  words,  the  separation 
that  has  been  brought  about  as  a  consequence  of  private 
management  is  made  to  cease  when  a  higher  plane  is 
reached.     In  particular,  obligatory  relations  make  pos- 
sible  an   exchange   of   economic   objects,   and   protect 
society  from  the  ossification  that  would  take  place  if  the 
distribution   of   wealth   were   eternal   and   unalterable. 
Hence,  without  affecting  individual  activity  too  greatly, 
they  are  an  excellent  means  of  procuring    for  it  the 
advantages  of  collective  effort,  of  bringing  about  the 


§15]  THE   LAW  OF  OBLIGATIONS  135 

distribution  of  wealth  to  the  persons  who  require  it  more 
than  others,  notwithstanding  the  manner  in  which  it 
may  be  distributed  already ;  so  that  instead  of  a  perma- 
nent distribution,  a  constant  re-distribution  and  re- 
allotment  takes  place,  and  everything  is  kept  in  constant 
motion.  (Compare  p.  124.) 

3.  In  addition,  obligatory  relations  bring  the  future 
to  the  aid  of  the  present.     Just  as  they  ignore  distance, 
and  make  commodities  from  the  farthest  points  subject 
to  exchange,  so,  too,  they  bridge  over  time,  and  press 
what  the  future  has  to  bring  into  the  service  of  the 
present.     This  is  a  tremendous  aid  to  the  development 
of  intellectual  powers;    for  many  people  can  achieve 
more  than  they  ordinarily  would  if  they  can  obtain 
existing  wealth  in  exchange  for  what  they  will  have  to 
offer  in  the  future.     It  is  just  the  most  energetic  and 
ambitious  natures  that  can  procure,  in  this  way,  the 
means  for  the  production  of  new  goods. 

Thus,  it  is  the  function  of  the  law  of  obligations  to 
smooth  away  inequalities  and  chance,  and  thereby  to 
make  it  possible  for  the  values  that  are  inherent  in 
humanity  to  become  effective  in  their  proper  propor- 
tions. In  this  way,  it  liberates  development,  and  re- 
lieves it  from  the  hazards  of  time.  A  great  variety  of 
values  lie  in  the  future,  and  for  the  time  being,  do  not 
exist  for  the  present :  time  is  the  stepmother  of  humanity ; 
it  suppresses  values  that  deserve  full  recognition  and 
application.  And,  in  this  contingency,  it  is  the  province 
of  the  law  of  obligations  to  draw  the  future  into  the 
present.  By  this  means,  economic  life,  in  fact  the  whole 
world  of  human  values,  is  tremendously  enriched,  and 
the  future  already  devotes  its  gifts  to  the  present. 

4.  The  nations  that  thus  "discount"  the  future  are 
optimistic  nations,  full  of  the  joy  of  production.     But 
not  all  nations  are  so;    some  refuse  to  reach  into  the 


136  THE   LAW   OF   PROPERTY        [CH.VII 

future:  to  them  it  is  inviolably  sacred,  or  it  is  nothing, 
and  lies  outside  the  range  of  commerce.  This  concep- 
tion of  the  future  as  a  blank  page  lying  beyond  our  power 
is  thoroughly  oriental  (p.  28),  and  it  explains  the  oriental 
prohibition  of  transactions  involving  future  values;  for, 
in  such  transactions,  one  gives  a  present  value  for  a 
future  value  which  presently  is  not  recognized  by  the 
law.  Chance  is  an  immense  factor  in  the  future,  and 
the  Orient  does  not  concern  itself  with  chance. 

This  also  explains  the  prohibition  of  usury,  that  is  to 
say,  of  taking  interest ;  even  though  the  money  produces 
profit,  yet  this  is  only  the  result  of  future  acquisitive 
activity.  This  future  result  cannot  be  considered  at 
the  time;  and  as  it  does  not  come  into  consideration,  no 
equivalent  value  can  be  given  for  it,  otherwise  interest 
would  be  given  in  payment  for  nothing.  From  this,  too, 
we  understand  why,  in  the » Orient,  the  prohibition  of 
taking  interest,  and  the  prohibition  of  transactions 
involving  future  things,  are  related  and  appear  as  one 
institution. 

This  subject  will  be  dealt  with  again  later,  (p.  17.) 
5.  Obligatory  relations,  moreover,  draw  the  powers 
of  individuals  into  commerce,  and  in  this  way  substi- 
tute the  possibility  of  free  labor  for  slavery.  In  ancient 
times,  men  either  worked  for  themselves  or  as  slaves; 
work  for  others,  under  different  circumstances,  was 
exceptional,  and  assumed  more  the  form  of  a  kind  act. 
(p.  95.)  It  was  not  until  the  idea  arose  that  an  individual 
might  take  upon  himself  the  obligation  to  perform  work 
for  another  without  becoming  subject  to  the  other's 
arbitrary  domestic  power  that  a  free  right  to  work  was 
created.  At  the  same  time,  the  bonds  of  slavery  were 
loosed,  and  an  infinite  development  of  personal  power 
was  made  possible.  This  idea  excites  the  powerful 
impulse  to  action  cf  those  wholly  unfavored  by  the  gifts 


§15]  THE  LAW  OF  OBLIGATIONS  137 

of  fortune,  or  in  whom  the  keen  ambition  to  acquire 
further  wealth  is  inherent.     (Compare  p.  177.) 

6.  From  the  beginning,  the  law  of  obligations  has  had 
also  an  ethical  character:    everywhere  ethics  stood  by 
its  cradle.     But  at  the  same  time,  it  has  also  been  the 
means  of  raising  the  ethical  standard  of  humanity.     The 
ethical  element  that  enters  into  consideration  here  is 
the  reliability  or  dependableness  of  the  person.     Here, 
too,  the  object  is  to  exclude  chance  and  replace  it  with 
law  and  rule.     If  a  man  has  once  given  his  word  it  must 
not  depend  on  chance  whether  he  fulfills  it  or  not; 
others  must  be  able  to  build  on  it,  and  to  arrange  their 
affairs  accordingly.     A  man  who  is  true  to  his  word  acts 
more  morally  than  one  who  is  not,  first  because  he  obeys 
a  rule,  and  not  his  own  desire,  and  then  because,  in  the 
interest  of  another,  he  struggles  against  his  humor  and 
egoism  which  might  lead  him  to  break  his  word.   Adher- 
ence to  a  promise   thus  reaches  deep  into  moral   life. 
It  follows  the  command  of  truth  which  here  is  moved 
from   the   present   into   the   future.     The  person  who 
promises  must  make  his  word  come  true;   for  when  he 
promises,  he  gives    the  assurance  that   in    the  future 
some  definite  thing  will  occur,  and  he  must  see  to  it 
that  it  does  occur. 

Like  everything  of  an  ethical  nature,  this  too  was 
originally  bound  up  with  religion,  and  hence  has  a 
strong  cultural  significance ;  for  religion  is  always  promo- 
tive  of  inner  culture,  and  gives  utterance  to  the  deeper 
sides  of  humanity.  But,  even  separated  from  religion, 
ethics  has  been  of  importance  for  the  development  of 
mankind. 

7.  The  idea  that  a  man  must  remain  true  to  his  word 
is  one  of  the  main  lev.ers  of  the  law  of  obligations;   for 
obligations  are  based  to  a  large  extent  on  promises,  on 
contracts.     The  thought  of  an  obligatory  tie  is  asso- 


138  THE   LAW  OF   PROPERTY        [Cn.VII 

dated  with  the  sacredness  of  a  promise,  because  the  ful- 
fillment of  the  obligation  is  nothing  but  keeping  the 
given  word:  the  two  concur. 

And,  as  in  the  organic  world  two  things  always  act 
upon  each  other,  so  too  it  is  in  this  case.  The  law  of 
obligations  originates  in  the  demand  of  faithfulness,  but 
it  also  itself  demands  that  a  promise  be  kept  by  aiming 
constantly  at  the  fulfillment  of  the  given  word.  In  this 
lies  the  extraordinary  ethical  value  of  the  law  of  obliga- 
tions; it  cultivates  in  man  the  spirit  of  faithfulness  to 
his  word  and  his  agreements,  and  works  against  arbi- 
trary desire,  and  still  more,  immoral  trickery. 

The  explanation  of  how  the  idea  of  faithfulness  to  a 
promise  fructified  the  law  of  obligations  must  be  given 
in  the  history  of  the  law.  And  there,  too,  it  must  be 
shown  how  this  ethical  idea  appeared  in  religious  attire, 
and  long  retained  this  religious  character  (p.  137) ;  the 
promise  was  made  in  the  presence  of  the  gods,  streng- 
thened by  sacrifices  at  their  altars,  and  an  oath  was 
taken  inviting  their  curse  if  the  word  should  be  broken. 
Sometimes,  men  even  took  certain  definite  disadvantages 
upon  themselves  in  case  they  should  not  keep  their 
word,  and  pledged  their  bodies,  their  lives,  their  liberty, 
their  honor,  their  allegiance  to  their  country,  and  in 
fact  all  values,  as  has  been  described  elsewhere.2 

8.  The  general  aims  of  legal  culture  and  the  parti- 
cular ethical  aims  of  the  law  of  obligations  are  not  always 
in  accord  with  each  other.  The  future  may  be  dis- 
counted for  the  present,  and  present  and  future  values 
balanced  against  each  other,  only  in  as  far  as  these 
values  are  not  opposed  by  moral  and  economic  ob- 
stacles. The  reasons  that  can  be  advanced  against 
immoral  and  uneconomic  action  apply,  of  course,  more 
strongly  to  the  use  of  legal  means  for  such  a  purpose.  On 

1  "Shakespeare  vor  dem  Forum  der  Jurisprudenz,"  (1883). 


§15]  THE  LAW  OF  OBLIGATIONS  139 

the  other  hand,  the  principle  of  faithfulness  to  an  agree- 
ment will  admit  of  no  restrictions;  it  requires  the  ful- 
fillment of  the  promise  to  the  last  jot;  it  demands  that 
the  man  who  promises  shall  not  be  able  under  any  pre- 
text to  free  himself  from  carrying  out  his  word.  Thus 
the  sacredness  of  the  promise  leads  to  a  certain  pain- 
ful rigidity;  it  results  that  the  word  must  be  kept, 
regardless  of  all  else,  and  of  any  circumstances  of  the 
case  that  may  oppose  it.  Thus,  men  come  to  feel  that 
a  promise  must  be  kept,  even  when  it  is  at  variance 
with  general  morality,  or  is  entirely  uneconomic  in  its 
result.  This  also  gives  rise  to  the  principle,  that  gambling 
debts  are  debts  of  honor,  and,  even  though  not  recog- 
nized by  the  law,  must,  by  reason  of  the  given  word, 
be  all  the  more  punctiliously  discharged. 

These  two  principles  long  stood  in  contradiction  to 
each  other,  and,  indeed,  even  today,  this  contradiction 
has  not  been  fully  reconciled.  It  is  found  especially  in 
earlier  discussions  of  the  vow,  and  of  the  question,  to 
what  extent  a  man  might  free  himself  from  his  vow,  if, 
being  carried  out,  it  involved  immoral  action,  or  pro- 
duced a  detrimental  result  not  justified  by  the  circum- 
stances. In  such  a  case,  the  nullification  of  the  vow  was 
more  or  less  used  as  an  expedient.3 

The  solution  can  only  be  in  this:  that  the  principle 
of  faithfulness  to  an  agreement  must  be  made  sub- 
servient to  universal  cultural  law,  and  the  principle 
brought  into  prominence,  that  where  immorality  and 
corruption  lie,  even  the  given  word  is  not  entitled  to 
abuse  the  sacredness  of  the  law.  It  must  be  clearly 
recognized,  that  the  fulfillment  of  a  promise  that  is  con- 
trary to  morality  in  its  nature,  is  merely  a  second  im- 
moral act,  and  therefore  a  wrong.  This  is  the  only  way 

*Cf.  Kohler  and  Liesegang,  "Das  romische  Recht  am  Niederrhein," 
II,  p.  59,  seq. 


140  THE  LAW  OF  PROPERTY        [CH.VII 

in  which  we  free  ourselves  from  formalism,  and  sink 
the  promise  in  the  depths  of  moral  cultural  law. 

9.  This  is  especially  true  of  that  kind  of  immorality 
that  leads  to  the  restriction  of  personal  liberty.  In 
this  respect  the  following  applies: 

The  right  to  make  contracts  emanates  from  the  free- 
dom of  human  activity,  and  this  freedom  is  the  nerve 
of  the  development  of  the  individual  and  the  culture 
that  he  produces.  But  as  has  already  been  said,  this 
must  be  within  limits.  The  objects  of  a  contract  or 
agreement  may  conflict  with  the  interests  of  morality 
or  economics;  the  liberty  to  make  contracts  might  be 
misused  to  enslave  the  individual  and  fetter  his  future. 
How  far,  in  this  connection,  freedom  extends,  varies 
in  the  different  stages  of  culture;  where  slavery  is 
accepted,  a  man  can  in  various  ways  make  a  slave  of  him- 
self; where  slavery  is  rejected,  all  efforts  are  forbidden 
that  bring  about  slave-like  conditions. 

Two  facts  especially  come  under  consideration  here : 

(a)  The  effect  of  the  liberty  of  contract  is  beneficial 
only  if  the  contracting  parties  are  free  to  decide;  and, 
especially,  if  a  certain  possibility  of  choice  exists,  so 
that  the  person  is  not  in  a  necessitous  situation.  Tran- 
sactions concluded  in  a  necessitous  situation  are  also 
indeed  valid,  but  disproportionate  advantage  must 
not  be  taken  of  the  necessitous  situation:  that  would 
be  unconscionable  and  is  forbidden. 

(6)  The  liberty  of  contract  may  also  be  corrupt  in 
its  effect,  if  a  whole  class  of  persons  is  driven  by  the 
exigencies  of  life  to  make  contracts  of  a  certain  kind, 
and  the  freedom  to  make  contracts  would  lead  to  the 
oppression  of  these  persons:  the  economically  weak 
would  succumb.  Here,  it  is  for  the  law  especially  to 
determine  that  such  contracts  must  not  contain  certain 
conditions  which  oppress  the  economically  weak.  (p.  177.) 


§15]          THE  LAW  OF  OBLIGATIONS  141 

(c)  The  right  of  contract  may  also  be  abused  in  the 
formation  of  associations  that  control  commerce,  and 
turn  it  out  of  its  natural  channel.  This  is  a  new  phase 
of  economic  culture  that  has  come  to  us  from  the  United 
States.  The  corporations  control  markets,  and  give 
mankind  their  laws.  Little  can  be  accomplished  by 
direct  coercive  measures.  The  most  correct  and  efficient 
means  of  remedying  the  evil  is  to  apprehend  human 
nature  down  to  the  bottom,  and  to  permit  the  individual 
to  withdraw  from  the  combination  at  any  time.4  Then 
the  system  will  crumble  away  of  itself.  And  if  the 
attempt  is  made  to  perpetuate  it  in  the  form  of  trusts, 
individual  management  being  embraced  in  one  great 
whole,  individual  interests  will  again  lead  to  the  col- 
lapse of  such  artificial  formations  and  will  destroy  the 
excrescences  of  the  associational  instinct. 

How  impolitic  are  all  laws  that  proceed  only  by 
prohibitions!  We  must  fight  human  nature  with  itself! 

10.  It  is  the  province  of  legal  history  to  describe 
the  technical  development  of  the  law  of  obligations 
beginning  with  the  stage  where  the  debtor  pledged 
his  body  and  his  life,  up  to  the  time  when  the  bare 
obligation  sufficed,  and  ceased  to  operate  against  the 
person,  and  attached  only  against  what  envelops  it,  prop- 
erty. It  is  only  necessary  to  emphasize  the  following 
point  of  view.  The  law  of  obligations,  which  on  the 
one  side  is  rooted  in  the  sacredness  of  religion,  finds  its 
support,  on  the  other  side,  in  the  relations  of  power  be- 
tween the  creditor  and  the  debtor.  The  debtor  is  origi- 
nally the  needy  one,  and  he  offers  himself  to  the  creditor, 
subjugates  himself  to  him  as  a  slave  and  servant:  in 
this  situation,  it  is  possible  for  the  creditor  to  squeeze  the 
value  of  the  debt  out  of  the  person  of  the  debtor  and 

4  See  "Ideale  im  Recht,"  p.  68,  seq.  This  proposal  was  ignored  and  so 
of  course  a  dilemma  arose. 


142  THE  LAW  OF  PROPERTY        [CH.  VII 

his  family  in  most  rigorous  fashion.  This  conception 
is  strengthened  in  periods  during  which  slavery  is  cus- 
tomary.8 Military  slavery  and  slavery  for  debt,  stand 
side  by  side;  but  even  earlier,  the  view  arises  that  the 
military  slave  is  a  foreigner,  the  slave  for  debt,  a  mem- 
ber of  the  tribe.  If  the  desperate  expedient  is  not 
adopted  of  selling  the  debtor  slave  out  of  the  country, 
if  he  is  to  be  kept  at  home,  the  tendency  will  be  to  free 
him  from  the  hard  conditions  of  slavery,  and  to  amelio- 
rate his  lot.  Thus  gradually  the  debtor-slave  becomes  a 
debtor-laborer,  a  pawn,  and  he  may  be  redeemed. 
(Compare  p.  94.) 

If  the  power  of  the  creditor  is  thus  weakened,  and 
set  within  definite  limitations,  the  law  of  obligations 
must  be  built  up  on  another  basis. 

A  pledge  of  future  action  takes  the  place  of  pledge  of 
the  person.  Obligation  involves  a  "shall,"  that  is  to 
say,  a  command  determining  conduct,  directed  to  a 
certain  person,  and  which  he  must  obey  if  he  wishes 
to  be  an  unexceptionable  and  unblamable  member  of  a 
legally  ordered  society.  In  this  way,  the  idea  of  duty 
appears,  the  idea  of  a  connection  between  the  individual 
and  the  community  consisting  in  this,  that  the  individual 
must  sacrifice  his  will  to  the  whole  and  must  serve  it. 

11.  Obligation  also  has  its  place  in  moral  philosophy. 
There,   too,  it   concerns  the  relation  of  the  individual 
to  the  whole,  in  as  far  as  the  latter  is  the  guardian  of 
moral  endeavors.    There,  also,  it  is  a  command  to  the 
individual  to  be  moral  and  to  act  morally. 

12.  This  duty  has  been  much  exaggerated,  and  by 
nobody  more  than  by  Kant  and  his  successors,  who  saw 
in  the  combination  of  the  categorical  imperative  with 
metaphysics  (which  Kant  himself  rejected,  or  at  least 
declared  to  be  unproven),  the  salvation  of  humanity. 

•  See  above,  p.  92. 


§15]  THE  LAW  OF  OBLIGATIONS  143 

In  reality,  it  is  not  a  rigid  command  but  the  participa- 
tion of  the  individual  in  the  whole  that  produces  duty; 
hence  it  follows  that: 

(a)  It  is  evidence  of  a  higher  state  of  morality  if  the 
individual  does  not  regard  the  command  as  such,  but 
is  so  much  in  unity  with  the  whole,  in  his  thoughts  and 
feelings,  that  even  without  a  special  command  he  ful- 
fills the  duties  of  the  law  and  morality. 

(b)  So  much  the  more  is  the  view  to  be  rejected, 
that  morality  consists  only  in  obeying  a  commandment, 
in  opposition  to  one's  self  and  one's  own  wishes  and 
aspirations.     This  only   is  true,   that    when  the  indi- 
vidual's   sense  of  the  unity  of  all  is   not  yet   so  far 
developed  that  conformity  to  duty  has  become  second 
nature,    he   should  nevertheless  fulfill    this  duty    and 
must   therefore,    if  necessary,  perform  an  act  of  self- 
conquest. 

13.  The  binding  power  of  the  promise  has  generally 
been  made  dependent  on  this,  that  the  creditor  accepts 
the  promise,  that  is,  agrees  to  it.  The  reason  for  this 
is  obvious:  it  is  not  desired  that  other  people  should 
interfere  in  our  affairs.  Some  performances  may  be 
very  inconvenient  for  the  creditor,  some  burdensome, 
some  even  quite  detrimental;  especially,  if  a  man  could 
be  reproached  with  plundering  other  persons,  or  abusing 
an  office  or  position  in  order  to  receive  gifts  from  others. 
In  any  case,  it  is  in  accordance  with  healthy  com- 
merce, if  one.  always  remains  the  master  over  his  own 
property. 

Historically,  a  peculiar  element  contributed  to  this 
result,  namely,  that  the  creditor  took  possession  of  the 
debtor  and  controlled  his  person.  In  that  case,  of  course, 
action  was  necessary  on  the  part  of  the  creditor,  and  he 
had  to  dispose  of  the  debtor  in  some  way,  if  the  latter 
put  himself  at  his  service. 


144  THE  LAW  OF   PROPERTY        [Cn.VII 

If,  notwithstanding,  cases  have  developed  in  which 
the  creditor  became  entitled  through  the  mere  unac- 
cepted promise  of  the  debtor,  various  circumstances 
have  been  determinative  in  producing  them. 

If  a  man  vowed  something  to  the  gods,  he  was  im- 
mediately bound;  for  everyone  believed  that  the  gods 
themselves  accepted,  and  so  it  came  about  that  obli- 
gations to  the  city  (to  the  gods  of  the  city)  were  often 
declared  binding  without  further  formalities.  But,  above 
all,  it  is  very  comprehensible,  that  the  debtor  should 
assume  an  obligation  to  everyone  who  enters  into  a 
certain  relation  to  a  thing  or  matter;  for,  in  this  case, 
the  creditor  is  at  liberty  to  enter  into  such  a  relation  or 
not,  and  thus  he  does  indirectly  accept  the  promise  and 
apply  it  to  himself.  Here  belongs,  especially,  the  case 
of  the  debtor  who  promises  to  be  liable  to  anyone  who 
holds  a  certain  paper;  for  it  rests  with  the  creditor 
to  acquire  the  paper,  or  to  dispose  of  it  again ;  thus,  he 
does  not  become  the  creditor  against  his  will,  or  at  least, 
the  creditorship  is  not  forced  upon  him.  This,  too,  was 
originally  religious;  the  thing,  the  staff,  the  parchment 
to  which  the  right  adhered  was  the  representative  of  the 
oaths  which  the  person  swore,  the  acceptances  that 
he  gave,  the  curses  that  followed  the  breaking  of  the 
agreement. 

2.    Development  of  the  Law  of  Obligations 

1.  Developed  culture  requires  ethics  in  legal  inter- 
course, and  rejects  the  standpoint  which  it  formerly 
tolerated,  that  one  party  to  an  agreement  might  treat 
the  other  deceitfully.  Instead  of  being  bound  to  his 
word,  he  becomes  bound  to  the  faithfulness  expressed 
in  the  word.  But  faithfulness  in  legal  commerce  is 
truthfulness,  and  it  is  this  that  one  party  to  an  agree- 
ment owes  to  the  other.  By  this  means  commerce  is 


$15]  THE  LAW  OF  OBLIGATIONS  145 

raised  to  a  higher  plane,  human  nature  is  clarified,  and 
at  the  same  time  economic  life  is  promoted ;  for  even  if 
the  individual  himself  profits  by  deceit,  yet  this  injures 
and  benumbs  commerce  as  a  whole:  here  one  man's 
advantage  is  the  other's  disadvantage,  and  also  the  dis- 
advantage of  the  community.  Where  there  can  be  no 
confidence,  commerce  will  draw  back  timidly;  where- 
fore, it  is  only  in  the  nations  that  have  worked  their 
way  up  to  truthfulness,  that  economic  life  has  nourished 
to  its  full  capacity. 

2.  But  the  duty  of  truthfulness  does  not  exclude 
secrecy,  and  everyone  is  entitled  to  secrecy  regarding 
individual  things;   provided,  these  individual  things  do 
not  themselves  become  the  object  of  the  right.     If  any- 
one enters  into  a  contract  of  service,  information  regard- 
ing his  ability  to  perform  the  service  belongs  to  the 
truthfulness  of  the  transaction.     All  those  circumstances, 
on  the  contrary,  that  have  caused  an  individual  to  enter 
into  any  agreement,  are  separate  from  the  transaction; 
they  are  justifiably  the  secret  of  the  person.     Accord- 
ingly, legal  commerce  develops  in  such  a  way  that  all 
those  motives  are  unimportant  to  the  existence  of  rights, 
and  that  legal  consequences  take  their  course  with  no 
regard   to   what   external   and   inner   conditions   have 
existed  in  the  parties  to  the  agreement,  that  have  de- 
cided them  to  make  the  agreement. 

3.  The  reason  for  preserving  this  secrecy  is  a  healthy 
egoism  which  is  one  of  the  chief  motive  powers  of  a 
thriving  commerce.     Egoistic  impulses  are  much  stronger 
than  those  of  philanthropy,  and  if  we  should  let  the 
latter  alone  hold  sway,  many  of  humanity's  tasks  would 
remain   unfulfilled.     Therefore,    culture   must   allow   a 
healthy  egoism  to  rule,  and  the  law  must  not  become 
the  upholder  of  those  powers  that  might  benumb  and 
undermine  culture.     Hence,  every  party  to  an  agree- 


U6  THE   LAW   OF   PROPERTY        [Cn.VII 

ment  has  the  right  to  secrecy  in  respect  to  his  specula- 
tion: that  is  his  own  peculiar  advantage,  for  the  attain- 
ment of  which  he  acts.  It  is  his  speculation,  resting  on 
considerations  of  the  legal  relations,  and  the  judgment  of 
men,  and  it  is  often  more  a  matter  of  inner  impulse  and 
conviction  than  of  conscious  activity  of  the  mind. 
Thus,  for  instance,  when  a  man  buys  wares,  because  he 
believes  that  there  is  a  demand  for  them  in  another  place, 
where  he  can  dispose  of  them  with  profit;  he  need  not 
impart  this  fact  to  the  other  party  to  the  agreement, 
nor  need  he  tell  him,  if  he  has  received  information  that 
would  lead  one  to  expect  a  rise  or  a  drop  in  the  price. 
And,  if  someone  comes  to  the  conclusion  that  a  certain 
place  would  be  advantageous  for  building  purposes, 
and  he  buys  up  property  with  this  end  in  view ;  he  need 
tell  the  other  party  to  the  agreement  neither  his  reason, 
nor  the  fact  that  he  intends  to  acquire  a  large  tract  of 
land. 

The  justification  of  secrecy,  as  against  the  duty  of 
truth,  is  the  difficulty  encountered  in  this  sphere  of  law. 
The  doubts  that  arise  in  this  connection  can  be  decided 
by  assuming  that  the  custom  of  dealing  determines  what 
information  may  or  what  may  not  be  expected.  Healthy 
commerce  has  a  very  true  sense  of  what  one  may  be 
expected  to  impart,  and  what  is  so  private  in  its  nature 
that  it  would  be  impertinent  to  ask  for  it. 

If  it  is  a  matter  of  justifiable  secrecy,  it  would  even  be 
admissible  to  defend  one's  self  against  the  impertinent 
inquiries  of  a  curious  person,  and  to  put  him  off  with 
prevarications.  This  would  not  be  an  infringement 
of  the  truth  expected  in  dealing,  such  as  one  is  entitled 
to  expect.  When  the  fanatics  of  truth  object  to  this 
view,  they  merely  show  that  as  literalists  they  have 
failed  to  perceive  the  inward  significance  of  human 
relations. 


§15]  THE  LAW  OF  OBLIGATIONS  147 

4.  When  parties  to  an  agreement  enter  into  relations, 
according  to  which  one  owes  the  other  some  performance, 
the  following  ethical  idea  necessarily  develops:   as  long 
as  the  performance  has  not  been  completed,  the  obligor 
is  not  only  bound  to  the  performance,  but  is  also  obli- 
gated to  devote  himself  to  the  interests  of  the  other  with 
reference  to  the  future  performance.     For  he  must  imme- 
diately recognize  that  he  is  no  longer  acting  for  himself, 
but  for  another's  property,  and  in  regard  to  another's 
property  he  may  not  act  as  in  his  own  affairs.     This  too 
is  an  ethical  principle:   one  may  act  as  he  wills  as  to 
himself,  but  he  must  deal  with  the  other  party  to  an 
agreement  consistently  and  considerately. 

This  ethical  principle  will  also,  of  course,  considerably 
advance  economics,  for  the  more  confidently  considera- 
tion may  be  expected  in  obligatory  relations,  the  more 
certain  can  one  be  of  performance,  and  the  more  pos- 
sible does  it  become  to  make  the  expected  performance 
the  basis  of  speculations. 

5.  As  regards  the  care  element  in  obligatory  relations, 
the  law  has  certainly  had  to  concede  and  to  add  some- 
thing.    The  highest   care  cannot  always  be   exacted; 
and  here  two  points  of  view  come  under  consideration 
which  are  rooted  in  human  nature,  and  therefore  almost 
universally  control  our  cultural  rights. 

(a)  Whoever  promises  liberalities  to  another  must 
be  more  leniently  treated  as  regards  his  care  in  carrying 
them  out;  for  if  he  were  not  liberal,  the  other  would 
receive  nothing.  Now,  we  can  still  keep  the  promise 
of  a  gift  and  the  performance  of  that  promise  separate, 
and  conclude  that  the  fulfillment  of  the  promise  is  the 
fulfillment  of  a  duty,  not  a  new  gift.  Thus,  we  might 
conclude,  that  with  the  promise  of  the  gift  the  giver 
ceases  to  be  a  giver,  and  thenceforward  must  be 
responsible  for  utmost  diligence  to  perform.  But  this 


148  THE   LAW   OF   PROPERTY        [Cn.VII 

conclusion  would  be  monstrous.  It  is  incorrect  to  say  that 
from  the  moment  when  the  donor  takes  the  obligation 
upon  himself,  he  is  no  longer  capable  of  generosity;  for 
the  whole  is  a  unity  which  is  merely  divided  into  two 
parts  by  juristic  technic.  Hence,  mature  legal  conscious- 
ness will  come  to  treat  the  giver,  even  after  his  promise, 
in  accordance  with  the  principles  of  generosity;  and  here 
the  standpoint  follows  as  a  matter  of  course  —  that  as 
regards  the  duty  of  care  to  perform,  the  giver  must  be 
treated  with  greater  indulgence,  and  must  be  called  to 
account  only  if  he  is  guilty  of  actual  unreasonableness. 
The  same  applies  to  all  liberalities,  especially  to  unre- 
munerated  loans. 

(&)  According  to  a  second  point  of  view,  where  the 
obligatory  relations  are  between  members  of  a  family, 
the  view  is  maintained,  not  that  one  interest  is  coldly 
opposed  to  the  other,  but  that  each  one  acts  and  strives 
for  the  common  interest  and  for  the  whole.  But  here, 
each  must  be  allowed  to  operate  in  his  own  way  and 
manner.  The  family  cannot  regard  the  other  member 
of  the  family  as  a  stranger,  and  cannot  expect  him  to  be 
different  from  what  he  is  by  nature  and  character; 
hence,  it  follows,  that  in  such  cases,  a  liability  that 
exceeds  the  measure  of  what  a  man  is  in  the  habit  of 
performing  in  his  own  concerns  does  not  conform  to 
the  conditions  of  life.  For  a  man  can  only  be  required 
to  deny  his  own  ego  when  he  acts  for  outside  interests; 
not  when  he  is  active  in  the  interests  of  the  family. 
Accordingly,  there  arises  the  so-called  liability  for 
culpa  in  concrete  between  man  and  wife,  between 
father  and  child,  formerly  also  between  guardian  and 
ward;  and  there  is  also  the  culpa  in  concreto  in 
partnership  relations,  for  these  had  their  origin  in  the 
family;  partnerships  were  formerly  always  composed 
of  family  members,  or  persons  who  wefe  taken  into  the 


§15]  THE  LAW  OF  OBLIGATIONS  149 

family.  Even  today,  the  partnership  relation  bears 
this  character,  and  it  would  be  lamentable  if  the  par- 
ticular loyalty,  confidence,  and  the  intimacy  in  dealing 
among  the  partners  should  decline:  a  partnership  that  is 
not  so  constituted  contains  the  germs  of  dissolution. 

(c)  It  is  also  important  for  our  problem  to  note 
that  perfect  contract  relations  only  later  became  such 
by  growing  out  of  actual  relations  of  fact.     Special  men- 
tion may  be  made  of  agreements  for  the  custody  of 
movable  things.     It  often  happened  that  one  person 
deposited  some  object,  which  he  could  not  use  at  the 
moment,  with  another,  by  his  consent.     The  idea  origi- 
nally was  not  that  this  other  should  take  care  of  the 
object,  but  merely  that  he  should  allow  it  to  remain, 
and  should  refrain  from  appropriating  it  to  his  own  use. 
Only  gradually  did  this  develop  into  the  duty  of  guarding 
the  thing,  and  taking  the  necessary  steps  to  preserve  it. 
This  was  especially  perceptible  where  animals  were  con- 
cerned, which  had  to  be  fed  and  cared  for,  and  also  in 
the  case  of  plants,  etc.     Thus,  gradually,  the  contract 
of  bailment  developed,  but,  as  is  comprehensible,  the 
duty  of  the  keeper  still  remained  a  light  one,  and  he 
was  not  held  liable  to  the  utmost  care. 

(d)  Often,  however,  in  the  history  of  the  law,  the 
tendency  has  also  been  clearly  felt  to  make  the  liability 
of  the  debtor  heavier.     Such  tendencies  are  connected 
with  the  economic  situation,  and  have  different  mean- 
ings.   When,  by  agreement,  a  man  takes  a  certain  risk, 
he  seeks  to  compensate  himself  for  this  by  an  equivalent 
in  the  performance  rendered  in  return ;  and  this  equiva- 
lent will  be  a  kind  of  insurance  premium  which  he  either 
receives  himself  or  gives  to  another  who  takes  over  the 
insurance  of  the  risk.     But  these  are  ideas  that  did  not 
come  until  later,  after  the  insurance  idea  had  gained  a 
greater  importance. 


150  THE  LAW  OF  PROPERTY        [CH.VII 

Such  a  liability  is  especially  suited  to  large  under- 
takings which,  in  consequence  of  their  capital,  feel  the 
weight  of  such  a  burden  less  than  would  individuals, 
and  which  may  therefore  be  regarded  as  called  upon  to 
aid  in  the  equalization  of  human  relations;  this  applies 
in  particular  to  railways  and  other  large  undertakings. 

On  the  other  hand,  the  extension  of  liability  may  also 
be  intended  to  prevent  various  excuses  on  the  part  of 
the  debtor  who  is  apt  to  take  chances  and  then  deny  his 
carelessness.  In  other  words,  such  a  rule  may  be  one 
of  those  intended  to  coarsen  the  finer  development  of 
legal  relations,  when  it  is  recognized  that  this  finer 
development  is  unpractical,  and  must  fail  of  its  object 
by  reason  of  the  incompleteness  of  human  knowledge. 
(See  above,  p.  30.) 

Thus  the  change  has  been  largely  introduced  that  a 
debtor  is  liable  not  for  negligence  alone,  but  generally, 
and  can  offer  perhaps  no  excuse  but  vis  major. 

Whether  the  one  method  or  the  other  is  better 
depends  mainly  on  circumstances;  in  particular,  on 
whether  it  is  easy  or  difficult  to  prove  absence  of  fault, 
whether  the  heavier  burden  that  is  laid  on  the  debtor 
can  justly  be  compensated  by  an  equivalent,  whether 
security  is  possible  or  not,  etc.  A  system  that  lies 
between  the  two  allows  the  debtor  in  such  cases  to  take 
a  heavier  liability  upon  himself,  but  only  up  to  a  cer- 
tain amount  so  that  he  may  not  be  unduly  burdened. 

3.    Extinction  of  Debts 

1.  Obligations  may  be  continuous;  as,  for  instance, 
an  obligation  to  refrain  from  something,  or  an  obliga- 
tion requiring  repeated  acts;  for  instance,  the  payment 
of  a  continuing  annuity;  or  they  may  be  temporary,  so 
that  they  cease  with  a  momentary  act  which  represents 
just  what  is  essential  in  the  liability  for  the  debt:  the 


§15]  THE  LAW  OF  OBLIGATIONS  151 

obligatory  relation  then  dies  at  its  zenith;  it  dies  when 
what  it  was  intended  to  attain  for  humanity  has  been 
accomplished. 

The  obligation  then  is  prepared  to  expire;  it  is  extin- 
guished by  satisfaction,  and  especially  by  fulfillment, 
that  is,  by  that  performance  which  is  the  object  of  the 
obligatory  relation.  The  theory  of  these  performances 
is  one  of  the  most  interesting  parts  of  civil  law,  but 
cannot  be  further  dealt  with  here.  From  the  stand- 
point of  the  philosophy  of  law  only  the  following  points 
need  be  emphasized: 

(a)  Fulfillment  must  conform  to  the  obligatory  rela- 
tion. It  is  inadmissible  for  the  debtor  to  force  something 
else  on  the  creditor  in  place  of  what  he  owes.  But,  of 
course,  in  individual  cases  the  obligatory  relation  may 
be  such  that  the  law  gives  the  debtor  the  choice  of  ful- 
filling the  obligation  by  one  thing  or  another ;  for  instance, 
if  the  debtor  is  to  deliver  money  the  law  may  allow  him 
to  deliver  the  value  of  the  money  instead;  in  that  case 
the  legal  system  is  so  constituted  that  a  money  obliga- 
tion is  not  purely  a  money  obligation.  It  was  thus 
everywhere,  before  payment  in  kind  gave  way  entirely 
to  payment  in  money. 

(6)  Fulfillment  raises  the  opportunity  to  make  an 
assignment  of  performance  to  a  third  person,  the  creditor 
giving  the  debtor  instructions  to  pay  another  and  the 
debtor  conforming  to  them. 

(c)  Under  some  circumstances,  the  obligatory  rela- 
tion must  necessarily  become  extinguished  if  its  purpose 
is  completely  fulfilled,  or  if  it  has  become  purposeless; 
for  instance,  if  the  person  who  is  to  receive  payment 
receives  it  through  the  gift  of  another.8 

2.  The  method  of  fulfilling  an  obligation  was 
originally  unalterably  determined  by  the  nature  of  the 

6  "Lehrbuch  des  biirger.  Rechts,"  II,  p.  220. 


152  THE  LAW  OF  PROPERTY        [CH.VII 

obligation.     Here,  too,  the  mind  of  man  has  gradually 
begun  to  be  active:  this  gives  rise  to: 

(a)  The  agreement  of  fulfillment  according  to  which 
the  parties  agree  that  something  that  is  not  fulfillment 
shall  serve  as  fulfillment. 

(&)  The  direction,  according  to  which  the  person 
who  is  to  receive  payment  is  changed,  and  it  is 
determined,  by  the  declaration  of  the  creditor,  that 
payment  made  to  another  shall  have  the  same  result 
as  payment  made  to  the  creditor,  (p.  151.) 

(c)  The  arrangement  that  proceeds  from  an  adjust- 
ment of  accounts  with  its  further  ramifications,  running 
accounts,  etc.  In  this  connection  reference  should  be 
made  to  the  "Lehrbuch  des  biirgerlichen  Rechts,"  II, 
p.  185. 

4.     Securities 

(a)     Pledge. 

1.  The  pledge  may  be  interpreted  in  two  ways,  and 
has  taken  on  two  fundamentally  different  forms  in  the 
legal  systems  of  the  nations.  The  object  of  the  pledge 
may  serve  to  satisfy  a  debt,  inasmuch  as  the  creditor's 
claim  is  settled  with  it.  As  yet,  however,  nothing  final 
has  occurred ;  for  the  debtor  still  has  the  power  to  redeem 
the  pledge,  and  until  the  question  of  redemption  is 
settled,  the  matter  remains  pending;  but  this  does  not 
prevent  the  pledged  object  from  amounting  to  a  satis- 
faction. It  is  so,  if  it  is  the  aim  of  the  pledge  that  the 
thing  shall  by  the  operation  of  time,  become  the  property 
of  the  creditor.  The  change  of  ownership  takes  place 
as  soon  as  the  redemption  term  has  passed.  The  pledge 
relation  may,  however,  assume  the  opposite  form,  the 
object  becoming  immediately  the  property  of  the  creditor, 
and  the  redemption  being  considered  an  act  of  re-pur- 
chase. The  matter  is  developed  still  somewhat  differ- 
ently if,  on  the  expiration  of  the  term  of  redemption,  the 


§15]  THE  LAW  OF  OBLIGATIONS  153 

object  is,  indeed,  to  be  kept  by  the  creditor,  but  that 
he  is  to  make  settlement  with  the  debtor  for  its  surplus 
value.  In  this  case,  the  delivery  of  the  pledge  is,  every- 
where, the  satisfaction  of  the  claim. 

2 .  This  form  leads  to  the  second  fundamental  interpre- 
tation; according  to  which  the  delivery  of  the  pledge  is 
not  in  itself  satisfaction,  but  merely  the  means  of  satis- 
faction.    If  the  creditor  turns  the  pledge  into  money 
and  pays  himself  with  it,  the  idea  is  that  the  delivery 
of  the  pledge  does  not  discharge  the  debt,  but  that  only 
the  acquisition  of  the  money  obtained  from  the  pledge 
operates  as  a  discharge.     Whereas,  according  to  the 
previous  view,  the  intrinsic  value  of  the  pledged  object 
covers  the  creditor,  so  that  afterwards,  at  the  most,  an 
equalization  has  to  be  made,  this  interpretation  requires 
a  sale,  before  there  is  satisfaction. 

This  latter  interpretation  has  become  so  predominant, 
and  is  so  general  in  modern  law,  that  we  scarcely  ever 
think  of  the  former  interpretation  until  studies  of  com- 
parative law  remind  us  of  it.  It  was,  indeed,  distinctly 
present  in  the  Germanic  law,  but  it  was  not  found  pos- 
sible to  include  it  under  a  larger  principle. 

3.  The  practical  difference  between  the  two  views  is 
this :  according  to  the  principle  of  satisfaction,  the  creditor 
at  once  takes  the  risk,  and  if  the  thing  is  destroyed,  he 
cannot  make  a  second  demand  on  the  debtor;   for  the 
surrender  of  the  thing  has  settled  his  claim,  just  as  pay- 
ment would  have  done.     The  thing  is  the  creditor's 
satisfaction;   and,  if,  after  being  taken  it  is  destroyed, 
he  must  of  course  bear  this  loss;   just  as  he  would  the 
loss  of  money  that  the  debtor  had  paid  him. 

The  second  view  is  entirely  different ;  for  even  though 
the  creditor  holds  the  means  of  satisfying  himself,  yet 
he  has  not  the  satisfaction  itself.  Thus,  if  the  means 
perishes,  the  debtor  must  give  him  another  means  of 


154  THE   LAW  OF   PROPERTY        [CH.VII 

satisfaction.  The  possibility  of  satisfaction  is  not  the 
same  as  satisfaction. 

At  most  it  may  be  asserted  that  the  creditor  to  whom 
the  pledged  object  is  delivered  is  the  depositary  of  the 
pledge,  and  is  liable  as  such;  and  this  liability  can  then 
be  more  or  less  extended,  according  to  whether  he  is 
regarded  as  a  remunerated  or  unremunerated  depositary. 
It  accords  with  the  nature  of  the  transaction  to  regard 
him  as  a  remunerated  depositary,  as  the  delivery  of  the 
pledge  is  made  in  his  interest. 

Although  today  this  last  standpoint  is  universal,  a 
few  fragments  of  the  former  principle  have  remained, 
as,  for  instance,  the  principle  of  our  bankruptcy  law, 
that  whoever  has  a  pledge  cannot  bring  forward  his 
whole  claim  at  the  meeting  of  the  creditors,  but  only 
the  amount  not  covered  by  the  pledge;  and,  also,  the 
principle  in  civil  procedure,  that  whoever  has  a  pledge 
right  cannot  proceed  against  the  debtor  in  as  far  as  the 
pledged  object  affords  him  satisfaction,  etc. 

4.  A  second  important  division  of  pledges  is  into 
pledges  delivered  into  possession  (Besitzpfand},  and 
pledges  not  delivered  into  possession  (Nichtbesitzpfand). 
In  the  first  case,  the  pledge  is  delivered  into  the  creditor's 
keeping,  so  that  he  is  not  merely  legally  but  actually 
secured.  In  the  latter,  the  debtor  retains  possession  of 
the  thing,  and  the  creditor  is  more  or  less  dependent  on 
his  honesty. 

It  is  easy  to  understand  that,  in  early  times,  the  pledge 
was  commonly  delivered  into  the  creditor's  keeping, 
because  the  measures  of  the  law  were  weak,  and  confi- 
dence in  dealing  was  not  yet  firmly  established.  This 
arrangement  was  also  desirable,  because  the  transaction 
was  then  made  public  to  a  certain  extent. 

On  the  other  hand,  it  has  the  great  disadvantage 
that  the  debtor  is  thus  deprived  of  the  use  of  the  thing: 


115]  THE  LAW  OF  OBLIGATIONS  155 

this  may  possibly  bring  his  business  to  a  complete  stand- 
still. Take,  for  instance,  the  case  of  agricultural  imple- 
ments given  in  pledge,  without  which  the  work  of  the 
farm  cannot  be  carried  on. 

And  this  is  not  only  a  disadvantage  to  the  debtor, 
but  a  universal  economic  disadvantage;  for,  as  the 
debtor  cannot,  and  as  the  creditor  will  not,  use  the  thing 
—  and  the  latter  is,  perhaps,  unable  to  use  it  in  most 
cases  —  it  is  impossible  for  it  to  be  used  at  all,  and  thus 
humanity  is  deprived  of  the  service  of  often  very  impor- 
tant wealth. 

5.  This  can  be  remedied  by  allowing  the  creditor  to 
use  the  thing,  thus  making  it  a  usufructuary  pledge 
(Nutzpfand).  This  presupposes,  to  be  sure,  that  the 
creditor  has  a  business  or  establishment  in  which  the 
pledge  can  be  used,  and  this  requisite  obstructs  one  of 
the  main  advantages  of  the  pledge :  the  abstract  nature 
of  its  value.  Nevertheless,  in  earlier  times,  when  all 
the  subjects  of  the  State  were  very  similarly  engaged, 
this  was  more  easily  accomplished;  and,  in  particular, 
where  agriculture  predominates,  it  is  very  appropriate, 
if  a  pledge  consists  of  land  that  it  be  given  over  to  the 
use  of  the  creditor;  in  which  case,  of  course,  the  use  of 
his  own  land  is  simply  extended  to  include  the  pledged 
property. 

This  usufructuary  pledge  has  played  a  great  part, 
and  has  served  to  make  money  fruitful,  and  to  weaken 
somewhat  the  prohibition  of  taking  interest :  the  creditor 
had  the  use  of  the  thing,  without  the  profits  of  this  use 
being  deducted  from  his  capital,  or  only  a  part  was 
deducted,  and  the  remainder  compensated  him  for  being 
deprived  of  his  capital.  (Compare  p.  171  (4).) 

This  form  of  the  pledge  is  less  practical  with  movable 
things;  at  least,  when  there  is  a  great  difference  between 
the  occupations  or  establishments  of  individuals,  so 


156  THE   LAW   OF   PROPERTY        [CH.VII 

that  it  is  more  or  less  a  chance  whether  the  creditor  can 
make  use  of  the  thing  pledged. 

6.  All  these  circumstances  have  contributed  to  bring 
about  an  arrangement  whereby  the  debtor  retains  pos- 
session of  the  pledge,  and  the  creditor  is  not  actually 
but  only  legally  secured.  When  the  State  has  attained 
a  firm  development  so  that  the  faithful  conduct  of  the 
debtor  is  legally  assured,  no  great  obstacles  will  oppose 
this  arrangement;  hence  it  developed  in  the  Orient,  in 
Greece  and  Rome,  as  well  as  in  Germany.  It  is  the 
Roman  hypotheca,  and  the  newer  principle  of  German 
law. 

Nevertheless  this  form  has  its  considerable  disadvan- 
tages, because  a  man's  financial  condition  is  thus  more 
hidden  than  formerly.  No  one  knows  what  is  pledged 
and  what  is  not,  and  thus  a  wild  chaos  of  legal  relations 
arises,  from  which  escape  is  only  possible  by  the  adop- 
tion of  the  principle,  that  when  a  person  acquires  a 
pledged  thing  in  good  faith  it  is  freed  from  the  pledge. 
But  the  financial  condition  of  the  debtor  also  becomes 
more  and  more  uncertain.  The  man  who  is  supposed  to 
be  well  off  is  perhaps  already  overburdened  with  pledges ; 
one  evil  involves  another,  and  as  each  creditor  seeks  to 
cover  himself  as  far  as  possible,  each  will  endeavor  to 
obtain  a  pledge  of  the  debtor's  whole  property;  in  this 
way  the  economic  relations  become  more  and  more 
entangled. 

The  attempt  was  made  to  remedy  this  by  publicity, 
so  that  everyone  could  see  from  a  public  record  how  the 
debtor's  credit  stood.  This  proved  very  effective  in 
respect  to  land;  hence  the  publication  of  mortgages 
(Hypotheken)  was  adopted  in  Egypt,  Greece,  and  later 
in  Germany  and  in  all  Germanic  countries.  It  has  not 
been  found  as  practical  with  movable  things,  however. 
Two  systems  have  been  used,  either  the  system  of  keep- 


§15]  THE  LAW  OF  OBLIGATIONS  157 

ing  public  books,  which,  however,  can  only  suffice  where 
movables  of  a  certain  durability  are  concerned,  such  as 
agricultural,  or  manufacturing  implements;  or  the  sys- 
tem of  "marking"  pledge-objects  by  sealing,  etc. 

Another  disadvantage  that  arises  when  the  pledge 
remains  in  the  debtor's  possession  cannot,  however,  be 
avoided  in  this  way:  this  arrangement  furthers  the 
debtor's  recklessness,  and  he  is  led  to  overstrain  his 
credit,  and  pledge  everything  that  can  be  pledged,  as  he 
suffers  no  inconvenience  at  the  moment,  and  the  "day 
of  reckoning"  does  not  come  till  afterwards. 

7.  The  pledge  is  not  now  turned  into  money  by 
being  first  given  into  the  creditor's  possession,  but  is 
sold,  and  the  proceeds  are  given  to  the  creditor,  or  div- 
ided among  them,  if  there  are  more  than  one,  accord- 
ing to  their  priority.     The  manner  of  sale,  whether  by 
private  sale  or  public  auction,  is  a  matter  of  legal  technic 
and  belongs  to  the  civil  law. 

8.  A  later  development  displays  the  following  ten- 
dency: A  distinction  may  be  made  between  the  original 
thing  and  the  thing  as  it  exists  after  an  improvement 
has    been  made  upon   it.     The  improvement  (Amelio- 
ration) can  only  become  separate  property  when  it  is 
actually  separable;    as,  for  instance,  a  structure  built 
on  a  piece  of  land.     But,  if,  for  example,  the  land  has 
gained   in  value  owing  to  irrigation,  or  drainage,  the 
improvement   cannot  be  distinguished   from   the   rest; 
in  this  case,  the  improvement  is  not  an  addition  but  an 
internal  alteration.    On  the  other  hand,  security  rights 
(Werirechte)  may  attach  to  the  improvement,   though 
not  in  such  manner  that  the  right  of  security  embraces 
a  component  part  of  the  thing,  while  another  component 
part  remains  unaffected ;   but  in  such  a  way  that  in  the 
exercise  of  the  right  of  security,  that  part  of  the  value 
which  corresponds  to  the  improvement,  falls  to  the  holder 


158  THE   LAW  OF   PROPERTY        [Cn.VII 

of  the  security.  This  is  the  case  with  mortgages  on  im- 
provements (Ameliorationshypotheken) ,  and  they  exem- 
plify the  great  advantages  of  security  rights  which  are 
much  more  mobile,  and  conform  much  better  to  the 
interests  of  humanity,  than  the  more  rigid  rights  of 
servitude. 

(&)     Suretyship. 

1.  Suretyship  originally  meant  the  giving  of  a  hos- 
tage, the  debtor  being  released  by  a  new  debtor,  either 
at  once  or  when  the  need  arose.     Not  until  later  did 
suretyship  change  its  character  so  that  it  implied  an 
addition  to  the  debtor's  credit  instead  of  an  attachment 
of  the  person. 

The  principle  of  giving  pledge  of  a  hostage  is  based 
on  the  idea  of  representability,  one  person  being  con- 
sidered as  fitted  as  another  to  assume  the  liability  for  the 
debt  and  thus  to  satisfy  the  creditor.  This  applied  not 
only  to  obligatory  relations  of  an  economic  kind,  but 
also  to  penal  obligations,  a  surety  taking  the  place  of  the 
guilty  subject.  Here,  too,  we  find  the  idea  of  equiva- 
lence, resting  on  the  view  which  at  that  time  domi- 
nated criminal  justice,  and  did  not  necessarily  connect 
the  punishment  with  the  perpetrator,  but  even  extended 
it  to  other  persons. 

2.  To  act  as  surety  was  considered  the  special  duty 
of  the  members  of  the  family;    this  was  an  outgrowth 
of  the  earlier  idea  of  the  collective  liability  of  the  family. 
While  formerly,  by  virtue  of  the  law,  the  family  was 
liable  for  the  individual,  the  later  form  reversed  this, 
so  that  the  individual  took  upon  himself  the  liability 
for  other  members  of  his  family. 

3.  Suretyship  does  not,  of  course,  aim  at  subjecting 
the  surety  to  the  debtor's  difficulties ;  rather,  it  is  under- 
stood that  he  is  to  be  released  by  the  debtor's  doing  what 


$15]          THE  LAW  OF  OBLIGATIONS  159 

is  necessary  to  satisfy  the  creditor  either  economically 
or  by  undergoing  the  penalty.  Not  to  protect  the  surety 
against  liability  was  a  reprehensible  breach  of  faith, 
and  whoever  was  guilty  of  it  not  only  incurred  the 
blame  of  society,  but  the  surety  was  allowed  to  proceed 
against  him  rigorously.  At  first,  this  so-called  recourse 
developed  within  the  family,  and  the  State  paid  little 
attention  to  it  originally;  because  the  family  kept  order 
in  its  own  circle,  and  of  its  own  accord  revenged  all 
negligences  and  failures  on  the  part  of  its  members  to 
perform  their  duty. 

4.  Suretyship  was  a  liability  of  the  person.     It  was 
not  a  trade  obligation  but  a  personal  intervention  for 
another;    hence   the  principle  that  suretyship  expires 
with  the  surety ;  it  is  not  handed  on  to  the  heirs. 

5.  But  this  leads  to  serious  evils,  for  the  debtor  is 
freed  from  the  creditor  by  virtue  of  the  suretyship, 
and  then  the  creditor  loses  the  surety  also. 

Of  necessity,  then,  the  rule  developed,  that  in  such 
cases  the  debtor  must  produce  a  new  surety,  or  must 
again  offer  himself,  and  this  brings  about  a  far-reach- 
ing change  in  the  institution.  As  long  as  obligations 
existed  only  for  a  short  time,  this  condition  of  affairs 
either  did  not  occur  at  all,  or  had  no  effect  deep  enough 
to  influence  the  institution  to  any  considerable  extent. 
But,  when  long-continued  obligatory  relations  arose, 
it  was  necessary  to  provide  for  the  creditor  in  the  way 
mentioned;  and  this  gave  rise  to  the  rule,  that  by  pro- 
curing a  surety  the  principal  debtor  is  indeed  freed, 
but  not  completely;  he  must  again  become  answerable 
if  the  guaranty  of  the  surety  fails.  This  conditional, 
further  liability  of  the  debtor  gradually  grew  to 
be  unconditional;  and  so  it  came  to  be  that  both 
the  debtor  and  the  surety  were  liable  to  the  creditor  — 
a  condition  that  would  have  been  impossible,  accord- 


160  THE  LAW  OF  PROPERTY        [CH.VII 

ing  to  the  views  held  in  earlier  times;  for  then  the 
principle  was  maintained:  one  debt,  one  debtor. 
Gradually  the  debtor's  liability  became  so  conspicuous 
that  some  systems  of  law  have  forced  the  surety  entirely 
into  the  background;  so  that  he  is  answerable  only 
if  the  debtor  fails  in  some  way  to  perform.  What  is 
called  the  beneficium  excussionis,  according  to  which 
the  surety  may  require  that  the  creditor  first  proceed 
against  the  debtor  and  resort  to  the  surety  only  if  this 
attempt  is  unsuccessful,  is  a  very  meager  institution 
and  one  that  discourages  credit,  for  it  makes  the  credi- 
tor's security  unstable.  The  security  of  credit  requires 
not  only  full,  but  also  easy  satisfaction  to  the  credi- 
tor; in  order  that  credit  may  be  easily  obtainable,  it 
is  necessary  not  only  that  the  creditor  be  paid,  but  also 
that  he  attain  his  object  quickly  and  without  trouble. 
Hence  the  idea,  that  appeared  in  Germany  in  the  Middle 
Ages,  that  the  surety  may  require  the  creditor  to  pro- 
ceed punctually  against  the  principal  debtor,  so  that  the 
latter  may  not  become  insolvent  and  thus  cast  the  bur- 
den on  the  surety,  is  entirely  at  variance  with  the  mean- 
ing of  the  institution  and  deprives  it  of  a  great  part  of 
its  value.  The  only  proper  course,  in  such  a  case,  is  to 
allow  the  surety  to  proceed  against  the  debtor,  and  to 
leave  it  to  him,  whether  he  will  do  so;  so  that  the  debtor 
may  be  compelled  to  give  the  surety  security,  or  to  re- 
lease him  (either  by  finding  another  surety  or  in  some 
other  way). 

6.  The  institution  of  suretyship  has  attained  par- 
ticular importance  today,  through  the  fact  that  sureties 
often  appear  for  juristic  persons  and  guarantee  their 
obligations;  especially  is  this  the  case  as  to  members  of 
partnerships  of  unlimited  liability,  and  with  members  of 
co-operative  societies.  In  the  latter  case,  there  are  serious 
social  objections;  wherefore  the  attempt  is  made  to 


§15]          THE  LAW  OF  OBLIGATIONS  161 

lighten  the  responsibility  of  such  members ;  it  should  only 
be  recognized  if  the  society  becomes  insolvent,  and  then 
the  individuals  should  be  spared  as  far  as  possible. 

(p.  162  (4).) 

(c)     Joint  Liability. 

1.  The  certainty  of  fulfillment  can  also  be  increased 
by  joint  liability. 

2.  Joint  liability  affords  a  strong  guaranty  of  per- 
formance;   not  only  is  all  the  property  of  the  joint 
debtors  subject  to  the  creditor,  and  subject  to  be  dis- 
posed of  if  necessary  by  execution,  but  even  the  per- 
sons of  all  the  debtors  are  made  subject  to  him  —  a 
remedy  of  great  efficacy  in  the  days  when  pledge  of  the 
person  was  allowed,  but  which  even  now  is  not  without 
significance.     Although  the  law  may  have  advanced  to 
the  point  where  the  body  pledge  is  unknown,  yet  the 
personality  of  the  debtor  affords  a  strong  guaranty  to 
the  creditor,  because  the  debtor's  failure  to  meet  his 
obligations  may  injure  his  position  in  society;    so  that 
in  any  case  his  personal  undertaking  is  an  important 
security  for  the  fulfillment  of  an  obligation.     To  this 
is  added  the  following  consideration:   in  the  fulfillment 
of  an  obligation,  not  only  the  person's  wealth  and  whole 
position  must  be  taken  into  account,  but  also  his  char- 
acter and  his  customary  behavior.     There  are  persons 
who  are  unaccommodating  in  their  relations  to  creditors, 
who  are  apt  to  make  difficulties  for  the  latter,  and  feel 
no  pricks  of  conscience  if  they  fail  to  fulfill  their  obliga- 
tions.    Others  are  conscientious,  and  look  upon  it  as  a 
matter  of  honor  to  be  punctual  in  this  respect.     Some  are 
quarrelsome,  ever  ready  to  find  points  of  disagreement, 
and  thus  trouble  the  creditor,  while  others  are  peaceful 
and  give  way  rather  than  oppose  him. 

3.  Consequently,  it  is  of  a  great  importance,  if  the 


162  THE   LAW   OF   PROPERTY        [Cn.VII 

creditor  has  several  debtors  for  the  same  performance, 
so  that  he  is  able  not  only  to  make  demands  on  their 
property  and  personality,  but  also  to  create  for  himself 
as  great  a  security  as  possible,  by  making  use  of  the 
different  psychic  dispositions  of  the  debtors.  Hence, 
it  is  a  fundamental  condition  for  the  successful  existence 
of  a  joint  obligatory  relation  that  the  creditor  should 
be  able  to  choose  which  of  the  debtors  he  will  claim, 
because,  as  has  been  said,  not  only  wealth  and  position, 
but  character  and  business  methods  enter  into  the 
question. 

4.  It  is  true,  however,  that  a  less  pronounced  kind 
of  joint  liability  is  conceivable,  if  the  personal  element 
should  be  withdrawn,  and  only  the  collective  property 
remain  as  a  guaranty.  In  such  a  case,  it  is  reasonable 
for  a  debtor  to  require  that  the  creditor  distribute  his 
demand  among  all  the  solvent  joint  debtors;  and  where 
the  obligation  rests  upon  a  large  number  of  persons,  for 
instance  as  in  a  co-operative  society,  this  system  has  a 
particularly  practical  significance;  as  here,  the  partici- 
pation of  the  personality  is  withdrawn,  on  the  one  hand, 
and,  on  the  other,  the  collective  liability  of  the  individual 
members  overshoots  the  mark,  and  may  lead  to  difficul- 
ties for  the  individual,  even  to  his  financial  ruin.  It  is 
suitable  in  such  cases  to  lessen  the  collective  liability,  by 
distributing  the  debt  among  the  members  who  are  able 
to  pay. 


§16]  BARTER  163 

SECOND   DIVISION 
THE  LAW  OF  OBLIGATIONS  IN   DETAIL 

FIRST  SUBDIVISION 


SECTION  XVI 
BARTER 

1.    Barter  of  Things 
(a)     Foundations. 

1.  Barter  is  based  on  the  idea  of  equalizing  values. 
A  man  gives  something  and  receives  something  in  return, 
and  this  relation  of  giving  and  receiving  is  not  governed 
by  chance;    rather,  the  persons  stand  in  an  economic 
relation  to  each  other,  a  relation  in  which  values  are 
equalized.     The  tertium  comperationis  of  both   acts  is 
the  equivalence  of  their  value. 

2.  The  barter  value  is  not  the  same  as  the  value  in 
use;   for  it  is  not  the  value  that  is  determined  by  the 
individual's  need,  but  by  the  value  that  is  fixed  by  the 
social    function    of    the    article    in    general    commerce. 
Under  value  in  this  sense,  we  understand  the  extent  of 
the  economic  worth  of  an  article,  which  is  determined 
by  its  comparison  with  other  wares  and  their  economic 
uses.     It  is   incorrect  to  say  (with   Marx),  that  value 
always  corresponds  to  the  labor  that  the  article  repre- 
sents.    Value  is  rather  determined  by  a  whole  series  of 
social  factors:   the  demand  for  the  article,  the  effort  to 
obtain  it,  the  greater  or  lesser  frequency  with  which  it  is 
offered  for  sale,  the  facility  with  which  it  is  obtained, 


164  THE   LAW   OF   PROPERTY        [Cn.VIl 

and  its  greater  or  lesser  rarity,  which  is  by  no  means  only 
a  matter  of  labor  conditions  but  is  rooted  in  natural 
circumstances.  All  these  factors  will  affect  value,  and 
will  cause  the  thing  —  even  though  it  may  always  rep- 
resent the  same  amount  of  labor  —  to  assume  sometimes 
a  greater,  sometimes  a  lesser  social  importance. 

3.  It  is  not  only  need  that  is  of  importance  in  barter. 
A  number  of  other,  mainly  psychic  circumstances  come 
under  consideration,  especially  the  human  love  of  variety 
which    is    strongly    developed,  particularly   in    nations 
that  have  little  self-control  and  little  mental  culture. 
Men  grow  tired  even  of  what  is  best  and  most  beautiful 
and  want  something  else.    Then,  too,  the  psychic  needs 
that  are  esthetic  or  partly  esthetic  in  their  nature  have 
to    be    considered.       People    want    what    dazzles    and 
attracts  them,  what  appeals  at  the  time  to  their  sense 
of  beauty,  or  rather  their  mental  aspirations.     The  sud- 
den, unaccountable  popularity  of  a  thing,  the  immeas- 
urable attraction  that  some  article  has  for  people,  often 
plays  a  great  part. 

4.  It  is  a  misconception  to  assert  that  barter  grew 
out  of  the  division  of  labor.     The  division  of  labor 
naturally  increased  the  need  of  barter;    for  whereas, 
formerly,  it  might  have  been  possible  for  the  individual 
to  satisfy  his  own  needs  and  longings  himself,  it  ceased 
to  be  so  as  soon  as  the  individual  was  limited  to  the  pro- 
duction of  certain  definite  wares.     It  is  true  only,  that 
while  otherwise  the  tendency  favoring  barter  transac- 
tions was  based  more  or  less  on  chance,  the  whole  system 
of  economic  production  made  it  essential.     (Compare 
p.  129.) 

5.  The  backbone  of  barter  is,  as  has  been  said,  the 
equalization  of  value.     This  idea  of  equalization  in- 
creases, as  soon  as  articles  are  produced  which  are  not 
regarded  as  a  means  of  satisfying  personal  needs,  but 


§  16  ]  BARTER  165 

are  intended  to  represent  values.  While,  otherwise, 
value  is  an  x  which  is  contained  invisibly  in  the  objects 
a  and  b,  value  now,  at  least  on  one  side,  appears  openly. 
It  is  no  longer  an  x  but  a  certain  quantity,  v,  and  the 
question  of  value  which  otherwise  comes  under  consid- 
eration in  respect  to  both  the  objects  a  and  b  (because 
in  both  value  lies  invisibly  dormant),  need  now  be  con- 
sidered only  in  connection  with  the  article  a,  since  the 
exchange  value  of  the  value-representative,  v,  is  given, 
representing  clearly  and  unmistakably  to  everyone  a 
definite  value.  In  this  way  money  originates.  This  not 
only  means  great  progress  in  the  valuation  of  things, 
it  being  possible  to  reduce  the  value  of  everything  to 
a  money  unity,  just  as  when  we  bring  all  fractions 
under  one  denominator ; 7  but  a  second  advantage  is 
involved,  —  an  advantage  with  the  most  momentous 
consequences,  —  that  the  value-representative,  money, 
is  not,  at  the  same  time,  a  means  of  satisfying  any  one 
special  human  purpose.  If  one  who  wishes  to  dispose  of 
article  a,  wants  to  obtain  article  b,  he  must,  in  a  period 
in  which  barter  is  the  only  means  of  commerce,  seek  a 
person  who  wants  article  a,  and  at  the  same  time  has 
article  b  to  dispose  of.  In  other  words,  the  transaction 
as  regards  a  and  b  depends  upon  chance  —  chance  on 
both  sides,  in  fact  —  for  the  sale  can  only  take  place 
if  one  individual  wishes  to  dispose  of  a  and  obtain  b,  and 
the  other  wishes  to  obtain  a  and  dispose  of  b.  This  is, 
of  course,  a  powerful  obstacle,  and  not  only  imposes 
difficult  conditions  on  the  barter  transaction,  but  neces- 
sitates a  great  deal  of  human  effort,  till  finally,  an  oppor- 
tunity is  found  that  combines  both  requirements. 

It  becomes  necessary  to  eliminate  this  chance,  and 
one  of  the  principal  means  of  accomplishing  this  is  the 
introduction  of  money;  for  if  one  wishes  to  dispose  of 

'  "Einfiihrung  in  die  Rechtswissenschaft,"  p.  69. 


166  THE  LAW  OF  PROPERTY        [CH.VII 

article  a  and  obtain  article  b,  he  has  only  to  find  a  person 
who  wants  a,  and  will  give  him  the  value-representative, 
money,  for  it.  With  this  value-representative,  he  can 
now  seek  some  one  else  who  wishes  to  dispose  of  article 
b,  and  in  this  way  he  succeeds  in  acquiring  article  b 
instead  of  the  article  a  which  he  possessed.  Here  the 
contingency  is  only  on  one  side;  the  sole  chance  is,  that 
some  one  wishes  to  acquire  article  a,  and  further  that 
some  one  else  wishes  to  dispose  of  article  b.  Separated 
in  this  way,  the  contingency  is  much  more  easily 
overcome  than  when  it  is  combined.  If  the  simple 
chance  occurs  in  perhaps  fifty  per  cent  of  the  cases, 
the  combined  chance  occurs  in  only  about  ten  per  cent  of 
the  instances. 

6.  In  order  that  money  may  come  into  use,  things 
must  enter  into  commerce  that  are  most  generally  used, 
and  which  are  fairly  uniform  in  value.  When  this  is  the 
case,  the  custom  will  gradually  grow  up  of  giving  an 
article  for  such  an  article  of  general  use,  which  is  much 
easier  to  find  and  circulates  more  freely  in  commerce 
than  any  other.  When  it  has  become  usual,  instead  of 
satisfying  one's  wants  directly  by  barter,  to  seek  first 
for  such  an  article,  and  then  to  find  the  man  who  wishes 
to  dispose  of  the  thing  desired,  the  peculiar  use  of  the 
article  will  be  less  and  less  considered,  and  it  will  become 
more  and  more  a  representative  of  value  until  finally 
it  comes  to  be  regarded  only  in  the  latter  aspect.  Among 
peoples  that  live  by  hunting,  such  articles  are  chiefly 
animals' pelts,  which  everyone  needs;  among  cattle-rais- 
ing peoples,  cattle.  Different  kinds  of  animals  acquire  a 
general  value-significance;  small  cattle  (calves,  sheep, 
goats,  and  pigs)  represent  a  certain  value,  large  cattle 
another;  and,  as  medium  sized  animals  are  the  standard, 
the  size  of  the  individual  animals  does  not  matter. 
This  is  made  especially  easy  among  pastoral  tribes, 


§  16  ]  BARTER  167 

by  the  fact  that  one  shepherd  has  all  the  animals  of  the 
place  in  his  keeping;  so  that  the  transfer  can  be  made 
simply  by  re-branding  those  that  have  changed  hands. 

The  disadvantages  of  using  animals  in  this  way  appear 
as  soon  as  the  institution  of  money  becomes  more 
developed;  for  then  money  must  not  only  be  a  repre- 
sentative of  value,  but  also  a  means  of  keeping  or  stor- 
ing value,  and  a  means  of  dividing  it.  This  presupposes 
that  the  articles  have  a  certain  permanency,  and  do  not 
decay  after  a  time;  also  that  they  do  not  require  con- 
stant attention,  as  is  the  case  with  animals.  Thus, 
instead  of  pelts  or  animals,  leather  money  comes  to  be 
used.  Hence,  also,  some  nations  use  shells  and  other 
permanent  objects  of  value.  But  it  should  also  be  pos- 
sible to  represent  different  degrees  of  value,  from  the 
smallest  to  the  greatest,  for  if  the  objects  a,  b,  c,  having 
different  degrees  of  value,  are  exchanged,  the  value-repre- 
sentative must  be  such  that  the  value  of  a,  b,  c,  can 
be  represented.  This  is  only  possible  if  it  is  divisible, 
which  is  not  the  case  with  animals,  but  is  with  leather 
and  shells,  inasmuch  as  a  larger  or  smaller  number  can 
be  strung  together. 

But  metals  have  all  these  qualities  in  a  much  higher 
degree ;  hence,  it  soon  occurs  to  peoples  that  have  metals 
to  give  up  all  other  value-representatives,  and  to  use  only 
metallic  money;  ore,  of  course,  at  first,  and  then,  when 
the  production  of  gold  and  silver  is  sufficiently  developed, 
these  metals  too. 

The  division  of  value,  when  metals  are  used,  presup- 
poses of  course  that  weighing  scales  are  always  at  hand, 
on  which  the  quantity  can  be  weighed  that  corresponds 
to  the  value;  until,  at  last,  the  new  idea  arises  of  mark- 
ing on  a  piece  of  metal  the  amount  of  metal  it  contains, 
and  in  such  a  way  that  it  is  universally  credited. 
Thus  coined  money  originates.  Coined  money  has  two 


168  THE  LAW  OF  PROPERTY        [Cn.Vll 

qualities:  it  is  a  value-representative  in  itself,  and  it  is  a 
value  representative  with  a  publicly  announced  metal 
content. 

In  this  way,  the  public  offices  that  mark  the  pieces  of 
metal  gain  a  tremendous  influence  over  money.  Soon 
the  idea  of  allowing  semblance  to  take  the  place  of  reality 
appears  more  and  more  persistently.  The  State  begins 
to  make  out  false  certificates,  to  coin  or  mint  money, 
that  is,  to  stamp  the  coin  with  a  higher  value  than  the 
true  value  of  the  piece  of  money.  If  this  is  done  secretly, 
and  in  order  to  deceive  the  people,  it  is  immoral  and 
leads  to  the  destruction  of  public  confidence.  Whenever 
it  has  been  done  in  this  way,  it  has  always  ended  in  a 
period  of  confusion  and  disorder.  It  is  entirely  differ- 
ent, however,  when  the  semblance  is  not  intended  to 
deceive,  when  the  stamp  is  not  supposed  to  convey  the 
idea  that  the  coin  contains  a  certain  amount  of  metal, 
but  only  that  it  is  to  be  used  as  if  it  contained  that 
amount.  In  this  way  fractional  currency  and  paper 
money  arise. 

7.  Even  after  the  introduction  of  money  one  element 
of  contingency  still  remains,  and  this  element  the  inter- 
mediaries of  commerce  seek  to  eliminate  as  far  as  pos- 
sible. This  kind  of  commerce  consists  of  acquiring 
goods  not  for  one's  own  use  but  in  the  expectation  that 
others  will  need  them.  They  are  kept  in  stock  on  the 
chance  of  their  being  wanted.  The  result  of  this  is  that 
if  some  one  wishes  to  sell  article  a,  it  is  not  necessary  for 
him  to  find  a  person  who  needs  this  article ;  he  has  merely 
to  go  to  the  middleman:  and  similarly,  if  he  wishes 
to  buy  the  article  b,  he  need  not  seek  a  person  who 
happens  to  have  such  an  article,  and  is  willing  to  sell  it; 
he  need  only  apply  to  the  middleman  who,  without  him- 
self being  in  need  of  any  special  article,  disposes  of  the 
object  b  for  money.  The  progress  of  culture  can  be 


§  16  ]  BARTER  169 

perceived  in  this  process,  inasmuch  as  chance  is  eliminated 
as  far  as  possible,  and  man  overcomes  the  obstacles  that 
nature  and  society  throw  in  his  path. 

(b)     The  Evolution  of  Barter. 

1.  At  first  all  barter  transactions  were  promptly  and 
immediately    completed,    particularly    barter    between 
different  tribes,  which  developed  as  private  commerce. 
But,  even  among  members  of  the  same  tribe,  a  thing  was 
given  for  a  thing  received  at  the  time.     To  give  some- 
thing for  a  thing  that  is  to  be  received  in  the  future 
presupposes  an  economic  mind  that  is  directed  toward 
the  future,  which  primitive  peoples  did  not  possess,  and 
which  some  peoples  never  attain,    (p.  28  (2).)    When  sale 
takes  the  place  of  barter,  the  idea  of  credit  will  arise 
much  more  easily;   though,  even  then,  the  mind  is  not 
able  to  renounce  the  idea  of  a  bargain  for  ready  money. 
Thus,  if  a  man  wishes  to  buy  something  and  pay  for  it 
later,  he  does  it  indirectly  by  paying  the  price  "con- 
structively," and  then  receiving  it  again  as  a  loan.     By 
this  method  two  transactions  are  combined  that  grad- 
ually become  one:    the  "constructive"  payment  is  no 
longer  taken  into  account,  and  the  return  of  the  loan  is 
treated  as  a  part  of  the  original  transaction. 

2.  Barter   has  accomplished  its   object  when  each 
person  not  only  possesses  his  goods,  but  owns  them. 
The  mere  acquisition  of  possession  will  not  serve.     The 
man  who  does  not  own  the  things  he  possesses  cannot 
dispose  of  them,  and  his  relation  to  them  is  not  the  mas- 
tery  that   the  individual   should   obtain  over  natural 
objects.     Hence,  it  naturally  follows,  that  as  long  as  he 
does  not  own  the  goods,  the  object  of  the  barter  has  not 
been  accomplished.     Moreover,  the  acquisition  of  alien 
things  is  an  encroachment  on  alien  property,  and  is 
therefore  ethically  to  be  severely  blamed:    the  syste- 


170  THE  LAW  OF  PROPERTY        [CH.VII 

matic  purchase  of  alien  things  would  be  nothing  but  the 
continued  appropriation  of  others'  property,  and  would 
exhaust  the  marrow  of  ownership.  It  follows  that 
barter  is  ethical  only  when  it  is  so  treated  that  one  per- 
son acquires  ownership  and  the  other  refuses  either  to 
give  or  take  goods  of  another.  Hence,  if  the  vender  has 
unknowingly  sold  something  belonging  to  another,  he 
cannot  be  required  to  deliver  it,  in  spite  of  his  agree- 
ment; for  he  can  declare  that  he  will  not  continue  the 
dishonest  course,  but  intends  to  return  the  article  to  its 
owner.8 

It  is  quite  another  matter,  of  course,  if  both  parties 
agree  about  a  thing,  on  the  supposition,  and  in  the 
expectation,  that  the  owner  will  consent  to  its  sale. 

2.    Barter  of  Value.  —  Interest 

1.  Just  as  in  the  law  of  things  there  is  a  right  of 
security  as  well  as  a  right  of  servitude,  so  too  in  the 
law  of  obligations  there  is  a  barter  of  value  (Werttausch) , 
that  is  to  say,  a  value,  a  money  value  being  given  for  a 
money  value.     But  as  value  and  value  are  naturally 
equivalent,  the  exchange  can  only  take  place  with  a 
difference  in  time:    one  and  the  same  value  takes  on  a 
different    significance  when   present   value  and   future 
value  stand  opposite  each  other.     Thus,  all  business 
that  has  to  do  only  with  money  values  is  a  business  that 
exchanges  a  present  for  a  future  value. 

2.  In  the  closest  relation  to  the  use  of  capital  stands 
the  theory  of  interest.     In  the  life  of  primitive  peoples, 
where  the  production  of  value  is  generally  agricultural 
and  little  free  or  available  capital  is  found,  the  loan  is 

The  fact  that  Roman  law  taught  the  opposite  is  a  monstrosity  to  be 
understood  in  the  light  of  history.  It  is  less  comprehensible  that,  in 
spite  of  my  explanations,  its  justification  was  attempted  from  a  legal 
philosophical  standpoint.  Compare  "Archiv  f.  burgerl.  Recht,"  Vol. 
XXX,  p.  164,  also  my  "Gesammelte  Abhandlungen,"  p.  224  (respec- 
tively 1883  and  1877). 


§  16  ]  BARTER  171 

nearly  always  consumable  in  its  nature:  it  is  given  either 
in  moments  of  dire  need,  or  in  moments  of  recklessness. 
In  this  case,  it  is  comprehensible  if  it  is  thought  to  be 
hard  if  neighbors  and  members  of  the  same  tribe  require 
the  return  not  only  of  the  capital,  but  of  something  more 
as  well.  A  man  should  aid  his  neighbor,  and  not  make 
his  necessity  a  source  of  profit ;  and  if  he  abets  his  reck- 
lessness, the  matter  should  be  so  arranged  that  he  suffers 
by  it  as  little  as  possible.  This  is  the  origin  of  the  rule 
that  forbids  the  taking  of  interest.  The  prohihition 
accords  with  the  times  in  which  the  use  of  free  capital 
was  rare. 

3.  But   it  continued  in   later  periods,  and  in  this, 
two  motives  were  concerned.    First,  a  speculative  one, 
the  idea  that  the  future  is  still  a  zero,  and  cannot  be 
made  the  object  of  agreements;   something  that  is  now 
present  should  not  be  given  for  something  that  thus 
belongs  to  the  future.     This  idea,  which  has  already 
been  discussed  on  p.  28,  has  been  carried  out  by  the 
nations  even  in  regard  to  interest;    and  they  have  as- 
sumed, that  in  this  respect,  trading  with  future  values 
is  still  less  admissible  than  where  physical  products  are 
concerned.    For,  even  if  free  capital  brings  advantages, 
yet  these  are  not  as  tangible  as  products;    they  are 
profits  that  appear  sometimes  in  one  way,  sometimes 
in  another ;  profits  that  are  difficult  to  separate  from  the 
results  of  work  and  the  success  of  speculation.     Hence, 
they  are  less  the  subject  of  agreements  than  are  future 
physical  products;    and,  thus,  the  idea  of  the  sterility 
of  money  develops,  an  idea  which  the  Scholastics  of  the 
Middle  Ages  spun  out  to  great  lengths. 

4.  An  additional  motive  was  the  inherent  impulse 
to   increase   individual    activity,    and    to   prevent   the 
individual  from  retiring  with  the  proceeds  of  his  prin- 
cipal.    In  this  respect,  the  prohibition  of  taking  interest 


172  THE  LAW  OF  PROPERTY        [Cn.Vll 

long  exercised  a  favorable  influence.  Anyone  who  has 
available  capital  should  seek  to  make  use  of  it  himself, 
in  agriculture,  industry,  or  trade;  the  division  between 
capital  and  labor  that  exists  today  would  have  been 
impossible  at  that  time.  Whoever  wanted  to  live  on 
his  capital  was  obliged  to  pay  some  attention  to  its  em- 
ployment, and  could  not  simply  draw  the  interest  on  it 
without  considering  what  was  being  done  with  it.  One 
kind  of  investment  was  the  usufructuary  pledge,  the 
capitalist  taking  a  piece  of  land  into  his  possession  in 
return  for  money  lent.  He  was  allowed  to  use  the  pro- 
ceeds of  the  land,  as  these  were  not  interest  but  the 
results  of  the  use  of  the  land,  and  for  this  land  he  had 
given  his  capital.  But  this  method  gradually  fell  under 
suspicion,  and  it  was  difficult  to  refute  the  idea,  that  the 
capitalist  should  really  credit  the  proceeds  of  this  land  to 
his  capital;  and  so  it  happened,  that  in  time  even  this 
method  of  applying  capital  was  declared  to  be  usury, 
and  it  was  looked  upon  as  if  interest  were  taken  instead 
of  merely  what  the  land  produced.  (Compare  p.  155  (5)) . 

Another  transaction  of  this  kind,  was  the  purchase 
of  an  annuity  ( Rentenkauf) ,  which  consisted  in  a  man's 
receiving  for  his  capital  a  perpetual  income  from  a  piece 
of  land.  The  capitalist  might  not  demand  the  return 
of  his  money,  but  the  debtor,  on  the  contrary,  was 
allowed  to  redeem  the  sums  paid  as  part  of  the  annuity. 
These  sums  were  not  regarded  as  interest,  because  a 
capital  debt  (Hauptgutschuld)  was  necessary  to  a  debt 
that  bore  interest.  That  there  was  much  disapproval 
of  this  transaction  is  easy  to  understand. 

These  two  arrangements  made  it  possible  to  circum- 
vent the  prohibition  against  interest,  though  not  en- 
tirely, for  after  all,  the  usufructuary  pledge  creditor 
was  obliged  to  occupy  himself  with  the  cultivation  of 
the  soil,  and  whoever  lent  his  capital  for  a  perpetual 


5 16  ]  BARTER  173 

annuity  could  not  prosper  unless  he  kept  an  eye  on  the  man 
who  paid  the  annuity  and  the  condition  of  his  land.  It  was 
sometimes  necessary  for  him  to  provide  for  the  further 
cultivation  of  the  land,  so  that  he  might  not  suffer  himself. 

5.  In  trade,  too,  the  capitalist  had  to  take  part  in 
the  business,  if  he  wanted  his  money  to  be  productive. 
But  it  was  possible  for  him  to  have  an  associate  who 
performed  most  of  the  active  duties,  so  that  he  was  little 
more  than  a  supervising  spectator.    This  is  the  form 
of  partnership   ( Kommenda-Geschdft)  which  developed 
equally  in  the  Orient  and  in  the  Occident,  and  by  which 
a  capitalist  provided  a  man  engaged  in  commerce  with 
the  opportunity  of    gaining  money   in  an  agreement 
for  a  division  of  the  profits.    Thus,  the  partnership 
relation  was  a  deviation  from  the  rule,  and  it  was  pos- 
sible to  draw  proceeds  from  capital,  even  if  the  eco- 
nomic labor  was  left  to  some  one  else.    It  was,  of  course, 
advisable  for  the  capitalist  to  exercise  a  certain  amount 
of  supervision  and  care  in  the  matter;  and  even  today, 
a  man  who  invests  his  fortune  in  stocks  is  not  alive  to 
his  interests  if  he  pays  no  attention  whatever  to  the 
business,  and  does  not  at  least  take  part  in  the  annual 
meeting,  or  in  some  other  way  acquaint  himself  with 
the  manner  in  which  the  business  is  carried  on. 

6.  This  necessity  of  combining  labor  and  care  with 
capital,  in  order  to  be  able  to  draw  income  from  it,  is 
characteristic  of  certain  periods.     With  a  people  that 
has  to  be  trained  to  regular  occupation,  it  helps  to  develop 
the  inclination  to  labor,  and  prevents  the  individual  from 
being  overwhelmed  by  the  tide  of  profit,  and  working 
only  until  he  can  retire  and  live  on  the  interest  of  his 
capital.     This  is  all  changed  as  soon  as  the  acquisitive 
instinct  is  so  far  developed  that   even  the   capitalist 
wants  to  have  more  and  more,  and  seeks  to  heap  up 
treasures.     However  much  Stoic  philosophy  may  despise 


174  THE  LAW  OF   PROPERTY        [Cn.VII 

such  a  course,  however  strongly  it  may  be  represented 
to  the  individual,  that  he  will  achieve  more  by  moderat- 
ing his  desire  for  acquisition,  the  striving  for  gain  will 
still  continue,  and  the  ambition  to  outdo  someone  else 
will  rule.  The  result  will  be,  perhaps,  feverish  haste 
and  rush,  but  it  will  also  be  an  impulse  to  use  the  earth's 
forces  in  all  directions,  and  to  obtain  more  and  more 
mastery  over  nature.  The  mastery  of  nature  is  the 
source  of  acquisition;  for  nature  is  the  goddess  who 
pours  the  fruits  of  industry  into  our  laps. 

7.  At  this  point,  the  exchange  of  capital  becomes  of 
the  greatest  importance;  because  now  the  first  concern 
is  that  capital  should  reach  the  person  who  can  do  the 
most  with  it,  and  this  exchange  of  capital  presupposes,  of 
course,  the  charging  of  interest;  for,  whoever  dispenses 
with  money,  only  to  receive  it  back  again  after  a  time, 
will  find  this  no  profitable  undertaking.  Philanthropy 
may  indeed  lead  to  this,  but  philanthropy  is  generally  a 
defective  spring,  not  to  be  compared  to  the  tremendous 
driving  power  of  egoism;  hence,  everything  that  pro- 
motes healthy  egoism  must  be  recognized  to  this  extent 
as  also  promotive  of  culture,  and  this  includes  the 
charging  of  interest.  Therefore,  among  all  industrial 
peoples,  it  has  proved  necessary  to  allow  the  taking  of 
interest;  and  this  interdiction  of  interest  was  either 
directly  violated,  or  circumvented,  in  every  possible 
way;  it  had  been  outlived  and  could  no  longer  exist. 

One  other  point  of  view  contributed  to  the  abolition 
of  the  interest  prohibition.  The  speculative  assertion 
that  money  was  unfruitful  was  met  by  the  statement, 
that  when  a  man  has  to  do  without  his  capital  for  a 
time  he  suffers  damage;  hence,  it  is  only  just  that  he 
should  receive  compensation.  So  it  followed,  that  even 
though  interest  was  unjustified  from  the  borrower's 
point  of  view,  it  was  yet  justified  from  the  lender's 


§  16  ]  BARTER  175 

standpoint;  for  he  cannot  be  required  to  do  without  his 
money,  and  without  compensation  renounce  the  profits 
that  it  might  bring  him.  Thus,  even  the  Canonists  have 
long  recognized,  at  least  conditionally,  the  admissi- 
bility  of  interest;  and,  today,  there  is  no  longer  any 
doubt  about  it,  even  in  ecclesiastical  circles. 

8.  In  the  lives  of  nations,  a  system  frequently  develops 
according  to  which  legal  rates  of  interest  are  established. 
This  is  not  an  isolated  phenomenon;  in  a  similar  way, 
certain  rates  are  determined  for  the  purchase  of  provi- 
sions, for  contracts  of  service,  and  other  things.  The 
idea  that  underlies  all  this  is,  that  when  commerce  does 
not  regulate  itself,  it  must  be  regulated  by  definite 
rules;  so  that  no  one  can  take  advantage  of  another's 
necessitous  condition,  need  of  provisions,  or  of  employ- 
ment, and  thus  introduce  needless  contingencies  into 
economic  life.  It  is  the  same  as  regards  money ;  for,  it  was 
long  before  competition  among  those  who  granted  credit 
forced  the  price  of  credit  down  to  a  just  basis.  It  was 
not  until  then  that  a  certain  average  current  interest 
arose,  which  of  itself  became  a  standard,  and  helped 
would-be  borrowers  in  acute  situations  and  difficulties. 

Such  conditions  in  fact  lasted  very  long;  hence  it  is 
comprehensible  that  the  establishment  of  a  rate  of 
interest  became  widespread  and  has  continued  for  cen- 
turies. Nor  are  we  concerned  here  with  the  absurdities 
that  have  prevailed,  or  periods  of  economic  ignorance, 
but  with  definite  conditions  of  human  culture  through 
which  the  nations  had  to  pass,  and  whose  peculiar  needs 
required  peculiar  legal  forms. 

3.     Commerce  in  Risks 

1.  It  was  a  stroke  of  genius  in  Germanic  law  to  pro- 
vide for  a  commerce  in  risks,  to  treat  dangers  as  objects 
to  be  dealt  with  in  business.  The  risk  that  one  man  bears 


176  THE  LAW  OF  PROPERTY        [Cn.VH 

can  be  taken  over  by  another  who  receives  something  in 
return.  That  in  itself  would  be  merely  an  ordinary 
barter  transaction;  but  the  ingenious  treatment  of  the 
matter  consists  in  this,  that  risks  in  the  mass  are  entirely 
different  from  an  isolated  risk  assumed  by  an  indi- 
vidual. The  individual  has  to  bear  in  mind,  that  the 
catastrophe,  if  it  takes  place,  means  his  utter  ruin.  In 
reckoning  with  masses,  however,  the  risk  is  a  balanced 
one;  because  only  one  or  another  of  many  dangers 
regularly  occurs ;  so  that  whoever  takes  upon  himself  the 
risks  of  mass  commerce  can  be  fairly  sure  that  he  will 
have  to  meet  only  a  limited  percentage  of  them.  Now, 
all  the  individuals  who  transfer  their  risks  to  him  will 
be  prepared  to  pay  an  appropriate  equivalent;  and  in 
most  cases  this  equivalent  will  be  pure  gain  to  the  man 
who  insures,  and  only  in  a  few  cases  will  it  be  necessary 
for  him  to  pay.  The  consequence  is,  that  for  a  rela- 
tively limited  performance,  he  is  able  to  undertake  all 
these  insurances.  In  other  words,  the  fact  that  of  all 
risks  only  a  limited  percentage  lead  to  misfortunes, 
thus  benefits  the  individual;  whereas,  otherwise,  this 
principle  would  be  applicable  only  in  mass  commerce. 
The  whole  idea  of  insurance  has  made  a  tremendous 
advance  in  our  day,  and  it  is  one  of  the  cornerstones  of 
modern  culture;  for  insurance  lends  stability  to  all 
things;  if  not  to  their  existence,  still  to  their  value, 
which  they  would  otherwise  completely  lack.  The 
result  will  naturally  be  greater  financial  steadiness, 
greater  certainty  in  speculation,  healthier  conditions 
generally,  and  the  possibility  of  devoting  one's  self 
entirely  to  the  aims  and  purposes  of  humanity. 

2.  A  magnificent  further  development  of  the  idea 
has  made  it  possible  to  include  also  death  risks,  with 
all  that  that  involves,  to  provide  for  bereaved  relatives, 
to  keep  money  productive  that  would  otherwise  be  tied 


§  16  ]  BARTER  177 

up  for  the  family's  future  benefit,  and  thus  to  make 
family  life  more  stable  and  secure.  We  now  have,  more- 
over, an  abundance  of  accident  and  liability  insurance 
enterprises  which  make  it  possible  to  endure  the  dangers 
and  hazards  of  modern  life,  and  to  take  upon  one's  self 
the  liability  for  third  persons  and  to  compensate  in- 
juries inflicted  by  those  in  our  service  who  would  not 
themselves  be  able  to  make  the  damage  good. 

4.     Commerce  in  Service 

1.  In  primitive  times,  only   service   by  slaves  and 
trade  in  slaves  were  known;   the  idea  that  service  might 
be  performed  by  free  men  was  remote.     Probably  the 
fluctuating  and  varying  needs  of  agriculture  first  led 
to  its  introduction.     Where  only  intermittent,  quick, 
and  temporary  service  is  needed,  the  idea   first  arises 
that  it  is  possible  for  a  man  to  render  service  without 
losing  his  liberty. 

2.  The  service  agreement,  that  is,  the  agreement  of  one 
free  man  with  another  free  man  to  perform  certain  work, 
or  to  deliver  the  result  of  certain  labor  for  compensation, 
belongs  to  a  later  period,  in  which  the  dignity  of  labor 
was  recognized,   and  the  workman  was  not  regarded 
merely  as  a  physical  machine,  but  as  a  being  filled  with 
human  aims  and  serving  the  interests  of  civilization. 
This  service  agreement  has  had  a  great  history  in  the 
evolution  of  culture;    and  its  function  is  especially  to 
raise  and  hallow  labor,  and  in  all  respects  to  make  the 
position  of  the  workman  a  dignified  one.     Accordingly, 
the  employer  is  obliged  to  see  that  the  workman  is 
spared,  as  far  as  possible,  all  danger  to  life  and  limb, 
health  and  honor,  and  the  workman  has  certain  fixed 
rights  that  cannot  be  infringed.    Hence,  the  full  measure 
of  liberty  to  make  agreements  is  not  admissible,  for  the 
reasons  given  on  page  175.    Especially,  it  must  be  made 


178  THE  LAW  OF  PROPERTY        [CH.VII 

possible  for  the  workman  to  sever  the  relation  when- 
ever circumstances  arise  which  make  it  impossible  for 
him  to  continue  his  service  without  detriment  to  his 
honor  and  his  character  as  a  free  man. 

3.  Still  other  factors  enter  into  the  matter: 

(a)  Thus,  in  associative  service  relations,  when  a 
larger  number  of  workmen  are  employed  in  the  same 
way  (in  factories  and  other  places) ;  for  there  the  work- 
men must  be  granted  a  certain  equality  of  position; 
wherefore  a  certain  order  must  be  established,  which 
applies  equally  to  one  and  all  (Arbeitsordnung) . 

(b)  Just  under  such  conditions,  it  is  advisable  to 
provide  for  institutions  that  promote  the  welfare  of  the 
workmen,  and  form  a  sort  of  associative  bond  among 
them  (sick  benefit  societies,  pension  associations,  etc.). 
A  fuller  exposition  of  this  point  belongs  to  industrial 
law;    the  latter  forms  a  good  portion  of  cultural  law 
which  was  first  cultivated  in  England  in  the  eighteenth 
and  nineteenth  centuries,  and  from  there  spread  into 
other  countries.     New  life  is  infused  into  the  service 
relation  by  associations  of  workmen,  which  leads  to 
their  confronting  capital  as  a  solid  power.     They  are 
thus  no  longer  economically  the  weaker,  and,  in  offering 
their  services,  are  able  themselves  to  make  conditions. 
It  also  leads  to  the  co-operative  labor  contract,  to  the 
establishment  of  tariffs  that  are  binding  for  the  service 
agreement,  and  to  the  treatment  of  individual  work- 
men as  a  part  of  the  whole. 

This  is  the  step  that  we  have  just  mounted. 

4.  If  in  this  way  the  workman  attains  a  better  posi- 
tion, so,  too,  on  the  other  hand,  the  vital  strength  and 
efficiency  of  the  working  classes  are  raised,  and  this  is  a 
cultural  interest  of  the  first  rank.     A  people  must  be 
healthy  inorder  to  remain  permanently  capable. 


§  17  ]  PARTNERSHIP  179 


SECOND  SUB-DIVISION 


SECTION  XVII 
PARTNERSHIP 

1.  A  partnership  consists  of  a  number  of  persona 
who  combine  capital  with  capital,  capital  with  labor, 
or  labor  with  labor,  for  the  accomplishment  of  common 
ends.  The  operations  of  man's  social  nature  are  made 
apparent  here;  for  what  the  individual  cannot  perform, 
combined  forces  can  accomplish.  This  is  true  not  only 
in  such  a  way  that  the  combination  of  five  fortunes 
accomplishes  five  times  as  much  as  one  could,  but  skil- 
ful combination  also  increases  the  significance  of  each 
contribution  progressively;  so  that  the  whole  is,  for 
instance,  not  five  times,  but  five  times  five  as  effective 
as  one.  This  is  especially  the  case  if  work  is  added  to 
wealth;  for  by  the  skilful  handling  of  money,  especially 
by  efficient  management  forces  can  be  drawn  from  the 
whole  that  otherwise  would  remain  forever  dormant. 
Just  as  in  chemistry  the  combination  of  two  elements 
is  not  to  be  regarded  merely  as  a  sum,  but  as  producing 
something  quite  new,  so  in  economic  life  the  combina- 
tion of  capital  and  labor  may  create  something  entirely 
new  and  unsuspected.  The  combination  of  capital  and 
labor  may,  indeed,  be  accomplished  in  another  way, 
especially  by  service  agreements,  whereby  the  workman 
subordinates  himself  to  the  capitalist;  but,  if  he  has  a 
right,  not  only  to  a  certain  wage,  but  is  himself  con- 
cerned in  the  success  of  the  venture  and  has  a  voice 
in  its  management,  his  attitude  toward  it  will,  of  course, 
be  entirely  different,  and  he  will  do  his  part  with  much 
greater  intellectual  activity. 


180  THE  LAW  OF   PROPERTY        [CH.VII 

All  this  shows  the  tremendous  strength  of  the  part- 
nership. Its  weakness  lies  in  this,  that  many  minds 
work  together  for  one  end;  and,  as  they  represent 
different  views  of  life,  different  temperaments,  different 
kinds  of  education,  the  result  is  often  a  divided  endea- 
vor; for  whenever  decisions  are  made,  one  may  decide 
in  one  way,  one  in  another,  and  this  may  lead  to  a 
mischievous  conclusion  since  a  partnership  is  based  on 
unified  action. 

2.  Whether,  and  to  what  extent,  these  obstacles  are 
overcome  depends  mainly  on  the  character  of  the  people ; 
hence,  some  nations  are  better  fitted  for  the  partnership 
than  are   others.     Especially  is  it  necessary   that  the 
individuals  concerned  should  be  able  to  renounce  their 
own  desires,  and  their  own  will,  for  the  good  of  the  whole, 
and  that  they  should  be  ready  to  make  such  a  sacri- 
fice, even  when  they  are  convinced  of  the  correctness 
of  their  view,  so  that  the  partnership  may  prosper.    A 
second  point  that  comes  under  consideration  is  loyalty 
and   honesty.     The  partnership  offers  endless  oppor- 
tunities to  a  man  to  work  for  his  own  advantage  at  the 
expense  of  his  associates.    In  this  respect,  too,  national 
character  is  a  main  factor ;  and  partnerships  will  thrive 
best  in  countries  where  loyalty  and  honesty  are  strongly 
developed  in  the  people.    The  achievements  of  a  nation 
do  not  depend  only  on  its  intellectual  gifts,  but,  also, 
on  qualities  of  character,  and,  especially,  on  those  that 
make  it  best  fitted  for  co-operation. 

3.  Fortunately,   in  earlier  times,   special  historical 
conditions  helped   to  overcome  the  weakness  of  the 
partnership  as  an  institution.     It  was  formerly  an  out- 
growth of  the  family  and  the  position  that  the  head  of 
the  family  enjoyed,  his  authority,  and  the  esteem  in 
which  he  was  held,  quite  apart  from  other  social  reasons, 
made  it  natural  that  others  should    follow  him,  and 


§  17  ]  PARTNERSHIP  181 

bow  to  his  will.  The  religious  element  was  also  of 
moment;  for  if  a  certain  member  were  believed  to  pos- 
sess supernatural  powers,  his  decisions,  of  course,  took 
on  an  added  importance. 

On  the  other  hand,  much  also  can  be  done  by  educa- 
tion to  promote  the  growth  of  those  virtues  that  are 
necessary  in  social  life.  Especially  is  it  possible  to  teach 
that  small  things  must  be  sacrified  for  great  acquisitions; 
and  that  it  is  a  mistake  obstinately  to  insist  on  one's 
own  way,  when  important  interests  are  in  question.  And 
as  regards  loyalty  and  honesty,  national  education  can 
and  should  do  a  great  deal;  for  in  co-operative  life, 
honesty  is  a  virtue  on  which  the  institution  of  partnership 
is  based.  The  law,  of  course,  can  aid  in  overcoming  the 
weaknesses  of  the  institution:  it  can  be  provided,  that 
in  cases  of  disagreement,  a  third  person  shall  be  heard, 
and  that  whoever  is  guilty  of  fraud  in  co-operative  life 
shall  become  an  object  of  public  contempt. 

4.  The  promotion  of  partnership  activities  is  among 
the  first  duties  of  the  law,  for  the  partnership  develops 
a  number  of  hidden  national  forces,  and  the  tremendous 
financial  power  that  the  partnership  attains  may  lead 
to  its  excelling  everything  else  in  the  market  of  the  world 
and  tipping  the  scales  when  highly  important  economic 
enterprises  are  in  question. 

The  law,  in  this  connection,  must  aim  especially 
at  a  proper  valuation  of  labor ;  for  the  chief  significance 
of  the  partnership  is  that  it  adds  labor  to  capital,  thus 
forming  a  combination  that  is  able  to  create  what  capi- 
tal alone  would  find  impossible.  On  the  other  hand, 
the  law  must  grant  the  greatest  possible  freedom  in  the 
formation  of  partnerships;  for  the  conditions  of  the 
agreement  must  be  adapted  to  individual  cases,  and 
must  conform  to  the  presuppositions  of  individual  life. 
Any  law  that  prescribes,  once  for  all,  in  what  manner 


182  THE  LAW  OF  PROPERTY        [Cn.VII 

the  members  of  the  partnership  must  participate,  and 
deprives  them  of  the  possibility  of  determining  other- 
wise, paralyzes  the  nerve  centre  of  partnership  life,  and 
makes  many  important  arrangements  impossible. 

In  addition,  the  law  must  not  allow  these  associations 
to  be  formed  for  too  long  a  time;  for  much  that,  at 
first  sight,  appears  to  be  admissible,  later  turns  out  to 
be  detrimental,  or  quite  impossible.  The  characters  of 
the  members  often  do  not  become  better  adapted  to 
one  another  with  time,  but  rather,  after  a  period  of 
experiment,  the  members  lose  either  the  ability  or  the 
inclination  to  adapt  themselves,  so  that  discord  is  later 
bound  to  appear.  It  may  also  happen  that,  on  certain 
occasions,  opposing  passions  and  conflicts  are  so  violent 
that  the  mutual  regard  of  the  members  ceases  once  for 
all.  Hence,  unless  the  legal  order  desires  to  limit  the 
existence  of  the  partnership  to  a  short  time,  it  must 
grant  the  possibility  of  giving  notice  of  withdrawal, 
even  in  the  case  of  partnerships  established  for  a  defin- 
ite time  —  that  is,  of  giving  notice  on  justifiable  grounds 
which  are  judged  from  case  to  case. 

5.  A  new  idea  enters,  when'  it  becomes  possible  for 
a  member  to  sell  his  share  of  the  business.  This,  it  is 
true,  appears  to  be  at  variance  with  the  idea  of  the 
partnership  which  counts,  more  or  less,  on  the  personality 
of  the  members.  Yet,  there  may  be  associations  that 
put  such  a  value  on  capital,  and  at  the  same  time  in- 
clude so  many  persons,  that  the  changing  of  several 
members  scarcely  comes  under  consideration.  On  the 
other  hand,  this  change  is  important,  in  that  it  makes  it 
possible  for  some  one  who  wishes  to  withdraw,  to  trans- 
fer his  share  to  some  one  who  wishes  to  enter,  instead 
of  bringing  about  a  dissolution  of  the  whole.  If  such 
changes  were  frequent,  and  involved  large  numbers 
of  members,  they  might  interfere  with  the  steady 


517]  PARTNERSHIP  183 

development  of  the  association;  and,  whereas,  at 
first  it  may  have  been  composed  entirely  of  optimists, 
it  may  end  in  a  sullen  pessimism.  In  order  to  avoid 
this  result,  the  effective  method  is  often  adopted  of 
putting  the  management  into  the  hands  of  an  able  man, 
or  men,  and  allowing  him  certain  independence  of  action. 
The  management  thus  remains  the  same  even  if  the 
members  change,  and  it  is  only  necessary  for  them 
to  express  their  views  and  desires  at  the  regular  or 
annual  meetings.  It  is  possible  for  them  sharply  to 
oppose  the  management  only  if  they  are  able  to  set 
up  a  different  practical  leadership,  but  this  is  usually 
difficult.  Hence,  in  spite  of  the  changes  in  membership, 
the  equilibrium  of  the  association  is  generally  main- 
tained. 

The  model  example  of  this  kind  of  association  is  the 
stock  company,  an  institution  whose  rise  throws  every- 
thing else  into  the  shade,  and  with  whose  financial  power 
the  world,  one  might  say,  can  be  conquered. 

Of  course,  there  are  dangers  connected  with  this  kind 
of  company  too,  and  these  are  especially  that  the  stocks 
may  be  improperly  used  for  honest  or  dishonest  specula- 
tion, or  that  the  management  may  be  inefficient  or  dis- 
honorable. In  this  regard,  it  is  the  duty  of  the  law  to 
support,  as  far  as  possible,  the  form  of  the  company,  on 
the  one  side,  and,  on  the  other,  to  take  precautionary 
measures  to  prevent  abuses;  for  instance,  by  making 
the  incorporators  responsible,  by  public  supervision,  etc. 


184  THE  LAW  OF  PROPERTY        [Cn.VlI 


THIRD  SUB-DIVISION 


SECTION  XVIII 
GIFTS 

1.  Gifts,  in  the  sense  in  which  we  understand  the 
word,  were  primitively  unknown  to  mankind.    The  par- 
ticipation  of   third   persons   in  individual   goods   does 
indeed  occur  even  in  the  lowest  stages  of  culture,  and 
hospitality,  in  particular,  is  a  very  ancient  institution.9 
But  this  was  not  based  on  the  ethical  idea  of  giving;  it 
was  merely  a  consequence  of  collective  conditions  and 
the  idea  of  communal  life.     Men  did  not  grasp  the  con- 
cept of  individual  ownership  as  in  our  day;   hence,  the 
bestowal  of  goods  on  others  cannot  be  interpreted  as  a 
giving.     The  goods  belonged  to  all,  and  if  they  were 
more  accessible  to  one,  and  others  participated  in  them 
only  in  a  secondary  way,  yet  this  was  an  actual  relation 
that  was  certainly  not  understood  as  meaning  that  the 
others  were  entirely  excluded.     Hence,  the  bestowal  of 
goods  upon  a  third  person  could  not  be  regarded  as  a 
breaking  off  of  the  rights  of  the  owner. 

2.  Gifts  do  indeed  occur  among  primitive  tribes,  but 
they  have  an  entirely   different   meaning.    They  are 
based  on  the  desire  for  change,  and  if  a  man  gives  some- 
thing, he  merely  declares  in  this  way  that  he  wants  some- 
thing else  from  the  recipient.     This  is  not  carried  out  in 
the  definite  form  of  barter,  but  only  in  the  certain  expec- 
tation of  a  return  gift;   though  the  expectation  is  fairly 
well  understood,  and  even  though  the  article  desired  is 
indicated.     Hence,  giving  among  primitive  peoples  is  a 

1  And  not  an  invention  of  the  Phoenicians  as  Ihering  assumed  —  a  posi- 
tively fantastic  doctrine  showing  complete  ignorance  of  primitive  peoples. 


§  18  ]  GIFTS  185 

very  suggestive  performance,  and  the  recipient  of  the 
gift  is  not  in  an  especially  happy  position;  he  is  forced 
into  a  situation  in  which  he  must  choose  one  of  two 
alternatives.  If  he  does  not  make  a  gift  in  return,  the 
original  giver  finally  demands  his  gift  back  again. 
Therefore  we  find  the  idea  current  among  all  peoples, 
that  a  gift  may  be  recalled,  and  that  the  right  of  recall 
does  not  expire  until  some  return  has  been  made,  —  an 
idea  that  was  later  circumvented  by  giving  in  return 
some  insignificant  article  such  as  an  old  hat,  glove,  or 
other  worn-out  article  of  clothing.  This  institution  is 
most  pronounced  in  the  code  of  the  Longobards,  where 
the  return  gift  is  called  "Laungild."  But  also  among 
other  peoples  the  same  thing  is  found. 

3.  The  return  gift  is  often  of  an  intangible  nature, 
and  the  original  gift  is  not  made  for  the  purpose  of  obtain- 
ing some  object  in  return,  but  in  order  to  procure  the 
recipient's  services  or  favor.    Thus,  eventually,  giving 
comes  to  be  recognized  as  a  one-sided  act.    This  is 
shown  especially  in  gifts  made  to  the  Divinity,  to  the 
temple;  for,  in  this  case,  the  "Laungild"  consists  of  the 
favorable  attitude  of  heaven,  and  in  all  the  good  that  is 
expected  from  above.     Thus,  the  leap  is  taken  to  the 
ethical  basis;    for  if  only  the  other's  attitude  is  taken 
into  consideration,  and  the  giver  finds  his  satisfaction  in 
this,  then  the  moral  element  is  present.    The  desire  is 
there  to  do  good  to  another,  to  aid  him,  to  ameliorate 
his  condition;    for  these  are  the  things  that  arouse  his 
gratitude,  and  thus  the  matter  passes  from  the  ground  of 
egoism  to  that  of  altruism. 

4.  With  this  the  recall  of  the  gift  ceases;  the  ethical 
act  requires  an  immediate  sacrifice  for  the  other  person. 
In  many  systems  of  law,  however,  the  idea  appears  that 
unethical  feelings  on  the  part  of   the  recipient  of   the 
gift  entitle   the  donor  to  procure  satisfaction  in  some 


186  THE  LAW  OF   PROPERTY        [CH.VII 

way,  and  this  may  consist  in  recalling  the  gift.  But  this 
recall  must  not  be  confounded  with  the  one  that  existed 
in  earlier  times.  The  earlier  recall  was  based  on  the 
unstable  nature  of  the  donation,  and  on  the  requirement 
of  a  return;  while  the  later  recall  rests  on  the  unethical 
feelings  of  the  recipient  of  the  gift.  It  depends  not  on 
the  fact  that  the  spirit  in  which  the  thing  was  given  was 
imperfect,  but  that  the  recipient  transgresses  against 
the  amenities  of  life.  Therefore,  the  claim  is  one  for  satis- 
faction; and  in  this  connection,  the  principle  has  further 
been  advanced,  that  if  the  donor  becomes  poor,  and  the 
former  recipient  of  his  gift  does  not  aid  him,  he  may  ask, 
if  not  the  return  of  the  gift,  at  least  a  recompense,  in  as 
far  as  it  is  necessary  in  order  to  aid  him. 

5.  Cases  are  not  rare  in  which  the  donor  is  so  gen- 
erous that  he  no  longer  handles  his  wealth  as  individual 
property,  but  more  as  if  it  were  common  property.  This 
is  simply  an  atavistic  relapse  into  those  primitive  times 
when  individual  ownership  was  not  recognized.  It  is 
a  type  of  extravagance,  and  indeed  one  of  the  most 
pronounced  kinds.  Other  kinds  are  the  outgrowth  of 
an  absurdly  over-developed  idea  of  personality,  or  they 
are  based  on  ideas  of  abstinence  and  self-sacrifice,  which 
may  be  of  highly  ethical  significance,  but  are  always 
objectionable,  when  they  stand  in  the  way  of  other 
ethical  duties.  Still  another  kind  of  extravagance  is 
seen  when  a  man  of  weak  will  falls  under  the  influence  of 
others,  and,  becoming  as  putty  in  their  hands,  squanders 
his  own  possessions.  The  law  has  been  constrained  to 
proceed  against  this  exaggerated  generosity  in  different 
ways.  This  may  be  done  by  interference  with  the  per- 
son and  restriction  of  his  capacity  to  transact  business. 
It  may  be  done  by  the  opposition  of  the  family  [restric- 
tion regarding  the  compulsory  portion]  (Pflichtteils- 
beschrankung) ;  and  by  the  establishment  of  certain 


§  19  ]  COMPENSATION  187 

formalities  that  regulate  gifts  and  make  the  act  of 
giving  more  difficult,  so  that  the  will  of  the  donor  is  put 
to  the  test,  and  that  the  donation  can  only  be  made  with 
perseverance. 


FOURTH  SUB-DIVISION 


SECTION   XIX 
COMPENSATION 

1.  We  have  already  spoken  (on  p.  89)  of  the  fact 
that  it  is  often  necessary  to  adjust  the  relations  of  life, 
so  that  they  may  be  freed  from  the  element  of  chance, 
and  brought  into  conformity  with  the  relations  favored 
by  the  law.     The  details  of  this  point  belong  to  civil  law. 

2.  Compensation  (Ausgleichung)  for  illegal  acts  first 
comes    under    consideration;     as    whoever,    by    acting 
wrongfully  has  brought  about  a  misadjustment  in  what 
has  been  settled  by  the  usages  of  the  law,  is  bound  to 
remove   this  discord,   and   to   re-establish   the   proper 
equilibrium.    This  subject  has  a  connection  with  the 
criminal  law. 

3.  We  are  concerned  here  with  liability  for  acts  of 
others,  and  especially  with  liability  for  damage  inflicted 
by  animals. 

The  idea  that  if  a  man,  in  pursuance  of  his  occupation, 
has  another  person  to  help  him,  he  must  in  some  respects 
be  answerable  for  this  person,  is  very  old  indeed,  and 
was  originally  rooted  in  family  relations.  A  helper 
became  a  member  of  the  family,  or,  at  least,  was  included 
in  the  family  community;  hence  the  head  of  the  family, 
according  to  ancient  rules,  was  responsible  for  him. 


188  THE  LAW  OF  PROPERTY        [CH.VII 

When  persons  came  to  employ  others  who  were  not 
included  in  the  household,  it  was  but  natural  that  the 
idea  of  responsibility  for  such  persons  also  should  arise. 
The  liability  may  either  be  absolute,  or  the  employer  may 
be  free  from  liability,  if  he  has  chosen  his  servants  with 
care  and  watched  over  them  properly.  These  are  the 
two  poles  in  the  treatment  of  the  matter ;  for  the  further 
view,  that  the  master  is  in  no  way  responsible  for  his 
servants,  is  so  unpractical  and  anti-social,  that  it  need 
not  be  more  than  mentioned.  Our  law  inclines  to  the 
second  system,  but  in  certain  cases  has  adopted  the 
first. 

4.  Of  special  importance,  however,  is  the  liability 
for  animals  and  slaves;   this  has  played  a  great  part  in 
the  history  of  the  law  and  still  requires  detailed  presen- 
tation. 

5.  The  liability  for  damage  inflicted  by  animals  grew 
out  of  the  idea  that  animals  are  reasonable  beings,  respon- 
sible for  their  misdoings,  and  hence  deserving  of  punish- 
ment and  correction.     All  peoples  originally  followed 
this  principle  —  very  naturally;   for  the  sharply  defined 
difference  that  our  cultural  life  makes  between  men  and 
animals  was  unknown  to  primitive  peoples.     They  put 
themselves  on  the  same  plane  as  animals,  and  regarded 
the  latter  as  equal  to  themselves.     Therefore,  we  find 
animals  being  sentenced  and  punished,  etc.;  and,  there- 
fore, if  A's  beast  did  B  an  injury,  B  claimed  it  in  order 
to   execute    punishment   upon   it.       Instead    of   doing 
so,    however,   he  might  make  use  of    the  animal  to 
work,    and   this  course   naturally  appeared    the   more 
reasonable  as  soon  as  his  desire  for  revenge  had  some- 
what subsided. 

6.  Of  course,  the  original  owner  of  the  beast  did  not 
always  care  to  be  deprived  of  it  in  this  way:  the  damage 
done  did  not  perhaps  amount  to  as  much  as  a  third  of 


§  19  ]  COMPENSATION  189 

the  animal's  value,  hence  the  principle  was  naturally 
evolved,  that  if  the  owner  of  the  animal  took  the  lia- 
bility upon  himself,  the  animal  need  not  be  given  away 
nor  punishment  inflicted  upon  it.  This  must  have 
seemed  the  more  acceptable,  because  it  was  quite  gen- 
eral for  one  man  to  take  upon  himself  another's  lia- 
bility, and  therefore  no  objection  would  arise  against 
redemption  of  an  animal  by  a  sum  of  money. 

7.  It  is  comprehensible  that  the  principle  was  thus 
formulated,   that   the  owner  must  either  deliver  the 
animal   up  or  be  liable  for  the  damage.    This  was  a 
rational  weakening  of  the  passions  of  revenge,  that  were 
awakened  by  the  activity  of  the  animal ;  and  thus,  also, 
better  and  more  sensible  results  were  obtained,  espe- 
cially, economic  results:  the  animal  was  spared,  and  the 
owner  was  not  deprived  of  its  use.    The  latter  fact  was 
of  added  value,  because,  as  a  rule,  the  animal  was  used 
by  him  in  carrying  on  his  occupation,  and  served  his 
purposes  better  than  those  of  another. 

Among  some  peoples,  this  treatment  was  modified 
in  the  following  way:  the  owner  of  the  animal  was  held 
responsible  only  for  a  part  of  the  damage;  the  idea 
being,  that  as  animals  are  only  half  reasonable,  it  is 
proper  to  make  the  owner  responsible  for  only  half  of 
the  damage.  This  was  the  case  in  Jewish  law. 

8.  But  all  these  views  were  applicable,  in  the  long 
run,  only  to  cases  in  which  the  animal  acted  with  special 
malice;  for,  if  it  merely  grazed  where  it  found  pasture, 
it  could  scarcely  be  said  to  have  acted  with  evil  intent; 
and  even  if  it  were  commanded  not  to  strike  against  its 
"neighbor,"  to  bite  him,  or  do  him  any  other  injury, 
it  could  not  be  supposed  that  an  animal  could  distin- 
guish between  property  relations,  and  that  it  was  due 
to  malevolence,  if  it  grazed  in  another  field  than  that  of 
its  owner. 


190  THE  LAW  OF  PROPERTY        [CH.VII 

This  led  to  another  principle :  in  such  cases,  the  animal 
could  not  be  held  answerable,  but  the  keeper,  or  herder, 
or  owner,  was  made  responsible ;  because  it  was  said,  that 
he  should  have  looked  after  the  animals  better  and  in  this 
way  liability  for  insufficient  care  and  keeping  originated. 
This,  of  course,  introduced  an  entirely  new  idea ;  for  here, 
not  the  animal,  but  the  keeper  was  directly  liable  for  his 
own  act,  because  he  had  not  exercised  the  necesary  care 
with  animals  that  might  in  this  way  be  a  menace  to  the 
property  of  another. 

9.  In  time,  of  course,  the  idea  that  the  animal  itself 
was  liable,  necessarily  disappeared,  when  a  fundamental 
distinction  between  men  and  animals  was  made,  and 
it  was  recognized  that  only  man  possessed  reason  and 
was  responsible.     It  is  culture  that  has  made  this  sharp 
dividing  line  between  men  and  animals,  a  process  that 
was  unheard  of  in  primitive  times,  and,  even  now,  is  not 
easily  understood  by  the  lower  classes.    From  then  on, 
two  methods  of  treatment  were  possible.     Either  the 
owner  was  held  accountable  only  in  case  of  offense, 
in  accordance  with  the  last  mentioned  principles;    or 
he  was  held  liable  for  the  animal  in  any  case  on  the 
ground  that  whoever  keeps  such  a  dangerous  creature 
must  be  responsible  for  it.    All  justification  for  requir- 
ing the  animal  to  be  delivered  up  was  thus  removed. 
The  practice  still  existed  for  some  time,  however,  not 
on  the  grounds  of  reason,   but  because  of  historical 
custom,  and  in  the  effort  somewhat  to  moderate  the 
owner's  liability. 

10.  The  general  method  of  treatment  is  to  make  the 
owner  entirely   liable,    assuming,   of  course,    that   the 
animal  was  moved   by  its  semi-intelligence,   and  did 
not  do  the  damage  under  the  guidance  of  any  person; 
in  which  case,  obviously,  it  is  to  be  regarded  merely 
as  the  tool  of  the  person  liable.    This  liability  may  be 


§20]  PROPERTY  AS  A  WHOLE  191 

limited  in  certain  cases ;  as,  for  instance,  in  the  interests 
of  industry  and  agriculture. 

11.  What  applies  to  animals,  applies  also  to  slaves: 
also  in  regard  to  the  latter  the  principle  existed,  that 
if  a  slave  committed  a  wrong  he  must  pay  the  penalty, 
unless,  indeed,  his  owner  made  himself  liable  for  him. 
Strangely  enough,  among  some  peoples,  this  idea  aided 
in  ameliorating  slavery,  by  making  it  possible  for  a 
slave  to  change  his  master  when  he  liked.  It  was  only 
necessary  for  him  to  do  another  man  some  injury,  where- 
upon the  latter  demanded  that  the  slave  be  delivered 
over  to  him.  Naturally,  this  might  be  arranged  be- 
tween the  slave  and  the  new  master;  and  it  finally  led 
so  far,  that  by  any  symbolic  injury,  the  slave  could  pro- 
cure another  man  the  right  to  take  him  away  from  his 
master,  and  claim  him  for  himself  (Bondo-Rechf).  Thus 
slavery  was  mitigated,  and  it  was  greatly  to  the  interest 
of  slave-owners  to  treat  their  slaves  well;  so  that  the 
latter  should  not  make  make  use  of  the  above  expedient. 
This  is  another  instance  where  the  unexpected  use  of 
a  legal  institution  led  to  a  remarkable  advance  in  cul- 
ture. 


SECTION  XX 
III.     PROPERTY  AS  A  WHOLE 

1.    General  Remarks 

1.  The   totality  of   a   person's  proprietary   powers 
constitute  his  property.    In  numerous  cases,  the  totality 
of  these  relations  experiences  a  common  fate  and  it  is 
therefore  of  interest  to  unify  the  totality. 

2.  This  unification  does  not  mean  that  the  totality 
represents  a  different  legal  object  from  its  constituent 
parts  (p.  70  (4) ,)  but  it  does  lead  to  this,  that : 


192  THE   LAW  OF  PROPERTY         [CH.VII 

(a)  Certain  legal  acts  and  legal  destinies  include 
all  the  proprietary  objects; 

(6)  Debts  are  encumbrances  on  the  property,  and 
must  be  carried  by  him  who  takes  over  the  property; 

(c)  The  principle  of  substitution  holds  in  accordance 
with  which  if  an  individual  proprietary  object  is  ex- 
changed for  another,  the  other  takes  the  place  of  the 
first  and  becomes  part  of  the  property,  (p.  71  (5c).) 

3.  A  closer  consideration  of  this  matter  belongs  to 
civil  law,  and  need  not  concern  us  here.  In  examining 
the  subject  philosophically,  it  need  only  be  said  that  the 
most  important  instance  in  which  property  appears 
as  a  totality  is  in  the  law  of  inheritance.  And  to  this 
we  will  now  turn  our  attention. 

2.     Inheritance 
(a)     In  General. 

1.  Inheritance  is  based  on  the  idea  of  the  contin- 
uity of   the  individual  property  after  the  death  of   its 
owner,  through  a  person  who  is  connected  with  this 
owner  in  a  definite  way,  either  by  reason  of  family  or 
a  similar  relationship,  or  by  reason  of  a  legally  effec- 
tive testamentary  provision  that  creates  a  new  rela- 
tionship. 

2.  The  right  of  inheritance,  therefore,  does  not  exist 
in  any  of  the  following  cases: 

(a)  If  after  the  owner's  death  the  property  reverts 
to  the  community.  Hence  when,  in  Rome,  property 
fell  to  the  gentiles,  or  when  as  today,  in  the  absence  of 
heirs,  it  falls  to  the  fiscus,  it  is  improper  to  designate 
this  an  inheritance.  It  is  merely  called  inheritance, 
because  the  technical  juristic  principles  governing  in- 
heritance law  have  been  extended  to  include  such  cases. 

(&)  Neither  is  it  inheritance  if  the  proprietary  rights 
of  the  deceased  cease,  and  another,  unrelated  to  him, 


§20]  PROPERTY  AS  A  WHOLE  193 

acquires  the  property;  for  instance,  by  new  investiture 
( Neuverleihung) . 

(c)  It  is  not  inheritance  if  a  man  is  a  joint  owner, 
and  on  his  death  his  share  either  is  merged  in  others, 
or  another  takes  his  place  as  a  joint  owner,  but  not  by 
virtue  of  the  dead  person's  disposition  of  his  property, 
but  owing  to  the  special  principles  governing  rights 
held  jointly. 

(d)  It  is  not  inheritance  if  the  property  of  a  juristic 
person,   after    the   dissolution   of    the   juristic   person, 
falls    to    an    individual,    or    another    juristic    person; 
although   this,  too,  is  often  treated  technically  as  an 
inheritance. 

3.  As  inheritance  rests,  above  all,  on  family  rela- 
tions, the  principles  of  family  organization  are  mainly 
determinative  for  the  inheritance,  and  this  in  two 
respects :  first  according  to  the  kind  of  organization  and 
then  according  to  the  degree  of  exckisiveness.  If  we 
ask  who  stood  nearest  to  the  deceased  person,  the 
first  thing  to  be  considered  is  whether  the  family  organ- 
ization conforms  to  matriarchy  or  patriarchy  (p.  105) ; 
in  the  one  case,  the  nephew,  in  the  other  the  sons,  will 
succeed.  But,  also,  in  another  respect,  the  family 
organization  must  be  considered.  If  each  family  is 
distinct  in  itself,  and  sharply  separated  from  the  other, 
so  that,  possibly,  they  are  at  odds  with  each  other,  then, 
as  was  emphasized  on  p.  107,  the  individual  must  belong 
exclusively  to  one  family  or  the  other,  since  one  could 
not  be,  at  the  same  time,  a  member  of  both  the  families 
A  and  B.  In  this  case,  the  succession  conforming  to 
matriarchy  will  be  exclusively  matriarchal,  and  that 
conforming  to  patriarchy  exclusively  patriarchal;  and 
in  the  latter  case,  the  child  will  be  able  to  inherit  only 
from  the  father  and  his  family,  not  from  the  mother  and 
her  relatives. 


194  THE  LAW  OF  PROPERTY        [CH.VII 

Not  until  families  are  less  sharply  divided  from  one 
another,  and  are  merged  in  the  unity  of  the  State  to  which 
they  leave  the  guiding  functions  of  culture,  and  when 
there  can  no  longer  be  any  question  of  struggles  between 
families,  does  the  time  come  when  a  person  can  belong 
to  several  families  as  regards  the  right  of  inheritance, 
(p.  106.) 

The  whole  development  of  the  law  of  inheritance 
among  modern  peoples  is  filled  with  this  idea;  and 
Roman  law,  in  particular,  labored  for  five  centuries 
before  it  finally  forsook  the  agnate  right  of  inheritance, 
that  is  to  say,  the  right  to  inherit  exclusively  from  the 
paternal  family,  and  established  the  right  to  inherit 
from  both  the  paternal  and  the  maternal  families,  which 
is  called  the  cognate  right  of  succession.  The  Germanic 
law  also  developed  in  the  same  way;  largely,  it  is  true, 
under  the  influence  of  Roman  law. 

4.  The  position  of  women,  as  regards  the  law  of 
inheritance,  is  also  closely  connected  with  the  family 
system;  as  appears,  for  instance,  in  the  treatment  of 
daughters.  Patriarchy  does  not  indeed  prevent  both 
sons  and  daughters  from  inheriting  from  the  father,  but 
the  daughter's  right  of  inheritance  leads  to  an  unde- 
sirable result;  for  if  the  daughter  marries,  her  property, 
according  to  the  principles  of  patriarchy,  is  trans- 
ferred to  her  husband,  and  the  property  of  her  family 
is  thus  considerably  reduced.  If  the  daughter  of  family 
A  marries  into  family  B,  her  possessions  will  fall  to 
family  B,  and  thus  be  lost  to  family  A.  This  idea  of 
itself  led  to  the  result  that  the  daughter  was  deprived 
of  her  heritage  and  restricted  to  her  dowry. 

From  this  standpoint,  there  could,  of  course,  be  no 
question  of  a  woman's  children's  inheriting  from  her, 
as  by  her  marriage  she  herself  had  been  deprived  of 
her  property;  and,  if  a  widow,  she  became  dependent 
on  annuities  and  usufructuary  rights. 


§20]  PROPERTY  AS  A  WHOLE  195 

All  this  was  changed  when  the  principles  of  patriarchy 
became  weakened  and  a  woman  retained  her  prop- 
erty in  spite  of  her  marriage.  No  logical  reason  then 
any  longer  existed  for  excluding  daughters  from  the 
right  of  inheritance,  although,  on  other  grounds,  many 
restrictions  were  laid  upon  their  inheritance  rights. 
It  followed,  that  the  children  of  a  mother  who,  as  a 
wife  or  widow,  possessed  property,  would  inherit  from 
her;  for  it  was  no  longer  in  accordance  with  the  prin- 
ciples of  family  organization  that  a  woman's  brothers 
or  more  distant  paternal  relatives  should  inherit  from 
her  to  the  exclusion  of  her  own  children.  This  gave 
rise  to  the  right  of  children  to  inherit  from  their  mother, 
which  can  be  traced  in  various  forms  in  the  laws  of 
nations  that  were  governed  by  patriarchy,  as,  for  in- 
stance, the  Romans  and  Jews. 

5.  With  this  development,  a  characteristic  change 
took  place  in  family  life.  Whereas,  in  the  time  of  family 
property,  the  various  branches  of  the  family  lived, 
worked,  and  earned  together,  the  different  brothers 
and  their  branches  of  the  family  now  struck  out  for 
themselves.  This  brought  about  a  significant  new  for- 
mation. 

Formerly,  if  one  of  the  brothers  died  before  his  parents 
and  left  children,  these  children  inherited  nothing;  the 
remaining  brothers  inherited  everything,  and  were,  of 
course,  obliged  to  care  for  their  dead  brother's  children 
as  for  their  own.  It  would  have  been  considered  mon- 
strous for  these  children  to  have  contended  against 
their  uncles  and  claimed  anything  for  themselves.  But, 
when  once  the  fraternal  branches  of  the  family  were 
separated,  so  that  even  during  their  lifetime,  the  brothers 
with  their  children  had  separate  property,  then  the  oppo- 
site course  must  have  appeared  monstrous;  for  it  is 
unnatural,  that  if  the  head  of  the  family  dies,  and  leaves 


196  THE   LAW   OF   PROPERTY        [Cn.VII 

descendants,  the  main  line  shall  suddenly  be  erased. 
If  the  other  bearers  of  the  family  name,  that  is  to  say, 
the  brothers,  are  still  alive,  it  may  indeed  long  appear 
that  because  of  their  near  relationship  to  the  head  of 
the  family,  they  have  superior  rights  in  his  property. 
But  this  idea  soon  conflicts  with  another,  that  the  chil- 
dren of  a  dead  son  stand  quite  as  near  to  the  head  of 
the  family;  in  fact,  that  the  relationship  of  grandchil- 
dren to  their  grandfather  is  usually  an  especially  inti- 
mate one. 

Thus  originates  what  has  been  called  the  right  of 
representation,  which  in  reality  is  nothing  but  the 
principle  of  trunk  distribution  (Stammteilung) ,  as  I 
termed  it  thirty  years  ago.  The  maintenance  of  the 
opposite  principle  in  some  systems  of  law,  among  others 
in  that  of  Islam,  is  merely  a  defect  in  development,  and 
shows  that  these  systems  have,  in  this  respect,  re- 
mained arrested. 

The  same  applies  when  there  are  no  sons  living,  but 
only  grandsons;  in  this  case,  the  idea  of  treating  all 
the  grandsons  equally,  without  regard  to  the  number 
of  family  branches  and  the  number  of  children  in  each 
line,  is  also  a  defect  which  stands  in  open  contradic- 
tion to  the  usual  separation  of  the  lines;  for  which 
reason,  all  the  nations  of  the  European  continent  have 
accepted  the  division  into  family  lines. 

(£>)  Indivisible  and  Divisible  Inheritance  (Einheits~ 
und  Mehrheitserbrecht) . 

1.  The  struggle  between  individualism  and  the 
social  tendencies  of  humanity  is  also  seen  in  the  law  of 
inheritance.  On  the  one  hand,  the  individual  de- 
mands consideration,  and,  if  there  are  several  persons 
of  'equal  position,  he  demands  the  same  measure  and 
amount  of  consideration  as  they  receive.  On  the  other 


520]  PROPERTY  AS  A  WHOLE  197 

hand,  social  life  often  demands  that  a  deviation  be 
made,  and  that  one  or  more  individuals  be  forced  into 
the  background. 

This  struggle  is  especially  pronounced  in  the  treat- 
ment of  children.  That  for  a  long  time  women  were 
less  favored  than  men,  that  is,  the  daughters  less  than 
the  sons,  was  due  to  the  special  law  governing  the  sexes, 
which  has  already  been  explained,  (p.  194.)  Yet,  even 
among  persons  of  the  same  sex,  although  the  individual 
urges  equal  treatment,  the  social  aspects  of  the  family 
and  of  property  frequently  require  another  course. 

2.  The  social  mission  of  the  family  often  demands,  in 
particular,  that  the  estate  remain  intact,  and  not  be 
divided  among  several  children.     This  may  be  the  case 
for  various  reasons;  especially  if  a  division  of  the  estate 
would   mean   that  its   power  would   be  destroyed   or 
weakened ;  the  portions  into  which  it  would  be  separated 
not  having  the  same  economic  significance  as  the  unified 
whole.     Religious  reasons  often  oppose  such  division, 
when  the  estate  is  also  dedicated  to  the  gods  and  to 
their  service,  and  religious  observances  in  the  family  are 
to  remain  uniform. 

3.  This  disagreement  may  be  avoided  if  the  estate 
remains  intact,  and  the  children  live  together  in  unity; 
so  that  the  property  of  the  head  of  the  family  belongs  to 
all  the  children  and  their  descendants,  while  the  fact 
that  its  management  remains  in  the  hands  of  one  per- 
son does  not  prevent  the  various  members  of  the  family 
from  pursuing  different  interests.     But,  from  what  has 
already  been  said,  we  have  seen  that  it  is  not  possible 
for  the  family  to  continue  in  this  kind  of  life  permanently: 
for  not  only  do  the  interests  of  the  different  members 
clash,  but  also  their  fundamental  differences  of  character, 
and  this  must  necessarily  break  up  the  unity.     (Com- 
pare p.  47  (7).) 


198  THE   LAW   OF   PROPERTY        [CH.VII 

4.  If  the  individual's  claim  to  a  division,  and  the 
social  claim  to  unity,  of  the  estate,  cannot  be  reconciled 
in  this  way,  one  of  the  two  claims  is  forced  into  the 
background.  And  here,  it  is  self-evident  that  the  social 
interest  must  come  before  the  individual  claim;  for 
under  the  stress  of  social  decay,  the  individual  also  would 
be  ruined;  whereas  if  social  interests  are  maintained, 
it  is  still  always  possible  for  the  individual  to  make  his 
way,  and  find  his  proper  course.  This  has  led  to  vari- 
ous solutions.  The  whole  estate  may  go  to  only  one 
child  as,  for  instance,  in  East  Asia,  in  China,  and  Japan, 
or  at  least  one  child  may  receive  far  the  greater  part  of 
it,  and  at  the  same  time  be  obliged,  more  or  less,  to  pro- 
vide for  the  others.  A  more  detailed  discussion  of  the 
subject  lies  within  the  province  of  legal  history.  It 
need  only  be  said  here,  that  philosophically  all  these 
institutions  sustain  the  social  endeavor  to  counter- 
balance the  exaggeration  of  individual  activity.  The 
special  question  whether  the  oldest  or  the  youngest 
child,  or  one  chosen  by  the  family,  or  by  the  father  him- 
self, is  to  be  the  manager  of  the  whole,  cannot  be  gen- 
erally solved,  but  must  depend  on  the  conditions  of  life, 
and  on  national  views  and  customs.  It  may  be  said, 
however,  that  the  right  of  the  eldest  would  seem  to  be 
the  most  natural  and  appropriate ;  for  the  eldest  son  is 
thus  placed  somewhat  in  the  position  of  a  parent,  as  re- 
gards the  younger  children,  and  this  gives  him  a  certain 
support.  The  right  of  the  youngest  son,  on  the  con- 
trary, can  only  be  justified  by  certain  peculiar  family 
conditions;  as,  for  instance,  if  the  older  sons  have  left 
the  home,  and  the  youngest  devotes  himself  to  the 
care  of  his  parents,  and  hence  takes  over  their  house 
and  property.  The  practice  of  permitting  either  the 
family  or  the  father  to  make  the  choice  will  lead  to 
favorable  results  only  if  the  others  have  so  much  confi- 


§20]  PROPERTY  AS  A  WHOLE  199 

dence  in  the  one  entitled  to  choose,  and  if  the  family 
feeling  is  so  strong,  that  all  immediately  submit  to  the 
choice  made,  and  also  if  their  faithfulness  to  duty,  and 
to  the  welfare  of  the  family,  is  unquestionable;  so  that 
it  need  not  be  feared,  that  those  with  whom  the  choice 
rests  will  allow  themselves  to  be  influenced  by  per- 
sonal motives  —  a  proceeding  that  would  mean  psychic 
ruin  and  the  decline  of  the  family.  With  us  such  a  right 
of  choice  has  therefore  been  generally  excluded. 

(c)     Disposal  of  Property  after  Death. 

1.  The  question  whether  it  is  proper  to  accord  to  the 
holder  of  property  the  capacity  to  determine  the  fate  of 
the  inheritance  after  his  death  has  occupied  the  nations 
much.     The  discussion  of  those  particular  conditions 
that  led  to  the  introduction  of  the  will  belongs  to  the 
history  of  the  law.     There  it  appears,  that  quite  differ- 
ent motives,  which  were  partly  religious,  partly  of  a 
family  nature,  and  partly  also  connected  with  states- 
manship, led  to  the  granting  of  such  a  right  of  disposi- 
tion in  greater  or  less  measure. 

2.  The  legal  philosophical  significance  of  the  will  lies 
in  the  increased  importance  of  the  individual,  as  opposed 
to  the  family,  and  in  the  insistent  claims  of  the  members 
of  the  family  to  the  property  left.    The  claims  of  the 
family  as  regards  the  different  portions  of  the  property 
are  not  always  equally  powerful;  not  seldom,  a  distinc- 
tion is  made  between  property  which  the  owner  has 
inherited  from  his  family,  and  property  which  he  him- 
self has  acquired.     The  inherited  property  is  regarded 
as  an  indivisible  portion  of  the  family  property;    and 
this  view  frequently  brings  the  efforts  of  the  individual 
to  naught.     Of  acquired  property,  on  the  other  hand, 
the  individual  has  the  free  capacity  of  disposition,  even 
after  death.     Here,  too,  we  see  the  conflict  between 


200  THE  LAW  OF  PROPERTY        [CH.V1I 

individualism  and  sociality,  and  the  question  is  whether 
the  welfare  of  society  is  to  be  expected  from  the  triumph 
of  the  one  or  of  the  other  element. 

3.  The  predominance  of  individualism  to  such  an 
extent  that  the  holder  of  property  has  the  power  of 
disposition   corresponds   to    human  development;    for 
it  is  promotive  of  culture,  if  property  does  not  always 
take  a  certain  course,  but  may  be  devised  by  the  owner 
to  certain  purposes,  and  thus  making  it  possible  that 
great  undertakings  of  mankind  may  be  considerably 
advanced.     This  gains  added  significance  from  the  fact 
that  it  also  increases  the  instinct  of  acquisition,  and 
causes  a  man  to  strive  with  all  his  might  to  obtain  the 
means  of  carrying  out  his  will,  even  after  death.     In 
this  way,  the  possibility  of  disposing  of  property  after 
death  is  a  powerful  incentive ;  it  increases  the  individual's 
devotion  to  his  work  and  to  his  business  life,  and  this,  of 
course,  advances  cultural  life  in  a  high  degree. 

4.  The  inheritance  of  property  according  to  a  fixed 
system  gives  rise  to  grave  questions,  for  it  is  simply  a 
chance  if  the  property  falls  into  the  hands  of  those  who 
know  how  to  appreciate  and  make  proper  use  of  it; 
whereas,  if  the  owner  can  dispose  of  it,  he  can  choose 
the  persons  who  may  be  expected  to  turn  it  to  the  best 
account.     Moreover,  the  individual  who  acquires  the 
estate,  will  have  a  strong  interest  in  choosing  a  fit  suc- 
cessor, and  even  though  he  may  make  mistakes,  yet 
his  choice  will  generally  be  better  than  that  of  fate,  or 
rather,  chance. 

Other  advantages  are  the  following : 

(a)  That  larger  masses  of  property  remain  undivided, 
and  thus  can  be  used  for  the  advancement  of  economic, 
scientific,  or  artistic  purposes. 

(6)  It  is  possible  that  the  estate  may  be  taken  entirely 
out  of  the  hands  of  incapable  or  unworthy  heirs,  and  be 


520]  PROPERTY  AS  A  WHOLE  201 

devised  to  those  who  will  obtain  the  greatest  benefit 
from  it;  it  can  also  be  adapted  to  the  most  various 
purposes.  In  this  way  it  is  more  or  less  possible  to 
attain  the  ideal  of  placing  the  estate  in  the  hands  of 
those  who  will  use  it  most  effectively. 

This  is  the  higher  meaning  of  the  right  to  dispose  of 
property  by  will,  and  this  meaning  must  be  borne  in 
mind  in  the  legal  effectuation  and  construction  of 
testamentary  dispositions. 

5.  It  must  be  admitted  that  there  are  also  certain 
disadvantages  connected  with  the  right  of  testamen- 
tary disposition.    The  owner  of  the  property  will  not 
always  be  guided  by  the  proper  considerations;   some- 
times he  will  be  subject  more  or  less  to  improper  influ- 
ences, and,  in  fact,  all  the  dangers  of  individualism  will 
here  be  pronounced ;  for  even  the  normal  man  vacillates 
between  individualistic  cultural-  endeavors  and  human 
prejudices  and  passions.     Yet,  the  greater  weight  cer- 
tainly lies  on  the  side  of  progressive  and  cultural  en- 
deavors ;  hence  the  right  of  disposition  of  property  after 
death  must  be  accepted  as  a  cultural  factor. 

6.  In    this    connection   different   important    special 
questions  arise  which  have  been  solved  in  the  most 
various  ways  in  the  different  national  systems  of  the  law ; 
in  themselves,  they  belong  to  the  sphere  of  legal  history, 
but  they  have  also  certain  legal  philosophical  aspects. 

(a)  There  is  the  question  of  the  revocability  or  irre- 
vocability of  the  will.  There  are  strong  grounds  against 
irrevocability  based  on  the  contractual  theory  (inherit- 
ance agreement),  inasmuch  as  the  individual  thus 
destroys  his  own  power,  and,  we  may  say,  digs  his  own 
grave.  All  the  reasons  mentioned  above  speak  for 
revocability,  especially  the  idea  that  the  free  power  to 
dispose  intensifies  the  instinct  of  acquisition.  Such  a 
restriction  may  paralyze  the  individual's  industry  and 


202  THE  LAW  OF  PROPERTY        [CH.VII 

instinct  of  acquisition,  and  thus  considerably  hinder 
the  work  of  culture.  Not  only  for  this  reason,  but  also 
on  other  grounds  is  revocability  desirable ;  many  a  man 
will  avoid  making  dispositions  that  bind  him  forever, 
and  deprive  him  of  the  capacity  to  change  his  will. 
Consequently,  he  will  continue  to  put  off  making  his 
will,  with  the  idea  that  circumstances  may  change,  and 
that  what  is  desirable  today  may  prove  to  be  unsuit- 
able tomorrow.  Thus,  a  variety  of  beneficial  arrange- 
ments will  fail  to  be  made;  they  will  be  put  off  from 
day  to  day,  until  it  is  too  late;  while  where  there  is  a 
will,  the  idea  that  it  may  be  revoked  affords  mental 
satisfaction  to  the  testator.  If,  notwithstanding,  the 
present  [German]  civil  code,  in  contrast  to  the  wisdom 
of  the  Roman  law,  has  accorded  wide  recognition  to  the 
contractual  limitation  of  the  will,  it  is  partly  because 
certain  important  vital  connections  are  involved ;  above 
all,  the  relations  between  husbands  and  wives,  which 
to  a  certain  extent  do  not  lie  within  the  circle  of  general 
consideration,  and  thus  require  special  attention.  The 
whole  institution  of  marriage,  indeed,  conflicts  with  the 
legal  principle  that  permits  the  individual  to  bind  him- 
self only  temporarily:  it  appears  to  a  certain  extent  as 
an  exception  which  is  only  justifiable  on  ethical  and 
social  grounds.  Inheritance  contracts  between  husband 
and  wife,  especially  in  connection  with  the  marriage  con- 
tract, may  here  find  their  justification.  Under  other 
pressing  circumstances,  too,  it  may  be  justifiable  to  go 
beyond  the  fundamental  rules  of  personal  liberty;  as, 
for  instance,  if  it  is  only  possible  for  some  one  to  obtain 
provision  for  his  old  age  by  promising  the  person  who 
maintains  him  at  that  time  a  definite  share  of  his 
property.  But,  on  the  whole,  the  inheritance  contract 
is  too  much  at  variance  with  the  principle  of  individual 
liberty  to  be  regarded  as  a  healthy  institution,  and 


§20]  PROPERTY  AS  A  WHOLE  203 

wherever  blind  dependence  on  earlier  social  conditions 
has  led  to  its  adoption,  it  must  be  looked  upon  as  a 
legislative  mistake. 

(6)  Great  difficulties  have  been  raised  by  the  ques- 
tion, whether  individualism  in  the  disposition  of  property 
shall  be  given  free  rein,  and  everyone  shall  be  allowed  to 
dispose  of  his  property  unconditionally,  or  whether  cer- 
tain restrictions  must  be  imposed.  It  is  so  well  known 
that,  in  this  respect,  different  systems  of  law  have  taken 
different  courses  that  the  point  need  not  be  further  dis- 
cussed here.  But  it  must  be  said  that,  in  this  regard 
the  psychic  conditions  of  a  nation,  and  especially  the 
influence  of  social  motives,  come  under  consideration. 
The  praise  and  blame  of  society  (nota  censoria)  are  fac- 
tors that  cannot  be  ignored:  in  this  regard,  society  plays 
perhaps  the  part  of  a  censor  that  is  still  highly  respected, 
even  though  the  mind  of  the  people  does  not  make  itself 
fully  felt  until  after  the  death  of  the  testator.  In  addi- 
tion, national  custom,  family  feeling,  the  way  in  which 
property  is  administered,  will  all  exercise  a  strong 
influence;  and  thus  it  may  happen,  that  the  individual 
is  given  the  full  right  of  disposition,  since  other  circum- 
stances guarantee  that  the  principal  outgrowths  of  exag- 
gerated individualism  will  be  avoided. 

Other  nations  do  not  trust  in  this,  and  therefore  pro- 
vide that  at  least  a  portion  of  the  property  must  remain 
for  the  legal  heirs  or  certain  near  heirs.  In  this  connec- 
tion, we  speak  of  a  free  portion  (Freiteil)  in  contrast 
to  the  privileged  property,  or  of  a  compulsory  portion 
(Pflichtteil}\  in  as  far,  as  certain  persons  have  the 
capacity  to  require  that  they  shall  not  be  deprived  of 
the  portion  of  the  inheritance  that  would  fall  to  them  by 
legal  succession.  There  is  wide  variation  in  legislation 
as  regards  this  point;  but  in  most  European  countries, 
the  right  to  the  compulsory  portion  has  been  estab- 


204  THE  LAW  OF  PROPERTY        [CH.VII 

lished.  Some  other  systems  of  law,  for  instance  that  of 
Islam,  allow  the  disposition  of  only  a  portion  of  the 
property.  One  of  the  disadvantages  of  the  compulsory 
portion  is,  indeed,  that  it  prevents  the  carrying  out  of 
highly  important  dispositions  of  property,  and  especially 
does  it  make  it  impossible  for  the  head  of  the  family  to 
keep  the  estate  together  by  leaving  it  to  one  child,  so 
that  by  voluntary  disposition  conditions  might  arise 
similar  to  those  that  were  described  in  connection  with 
the  inheritance  right  of  the  eldest  or  youngest  son. 

(c)  A  third  question  concerns  the  creation  of  future 
estates,  in  the  testament  providing  for  a  succession  of 
heirs  (sukzessive  Testament),  in  which  it  is  provided 
that  one  and  the  same  estate  shall  be  subject  to  different 
successions  in  turn ;  so  that  after  one  succession  a  second 
and  a  third  follow:  limited  inheritance  (Vorerbschaff) , 
reversionary  inheritance  (Nacherbschaft) .  This  rela- 
tion operates  as  a  restriction  on  the  limited  heir  (Vorer- 
be) ;  for  as  the  transition  to  the  reversionary  heir 
takes  place  by  virtue  of  a  conditionsubsequent  (auflo- 
sende  Bedingung)  the  disposing  capacity  of  the  limited 
heir  is  naturally  much  limited  by  reason  of  the  condi- 
tion subsequent.  Further  restrictions,  too,  are  often 
necessary  in  order  to  secure  the  property  to  the  rever- 
sionary heir.  This  gives  rise  to  a  legal  situation,  in 
which,  on  the  one  hand,  the  limited  heir  is  restricted, 
and,  on  the  other,  the  reversionary  heir  is  secured; 
hence,  even  though  the  reversionary  heir  is  the  one  who, 
in  all  probability,  would  succeed  the  limited  heir  in  any 
event,  yet  the  situation  is  a  different  one:  for  the  fact 
that  the  property  is  entailed  (Verklammerf) ,  provides 
for  the  reversionary  heir,  whereas  otherwise,  as  the  heir 
of  the  limited  heir,  he  might  suffer  by  the  property  being 
squandered  in  the  hands  of  the  limited  heir.  The  ques- 
tion is  whether  the  testator  shall  be  allowed  to  bind  the 


§20]  PROPERTY  AS  A  WHOLE  205 

estate  that  will  descend  to  his  heir  in  such  a  way  that 
the  heir  cannot  dispose  of  it,  and  that  it  passes  from 
him  on  to  a  second  person  (the  reversionary  heir). 

Here,  too,  we  find  the  same  struggle  between  indi- 
vidualism and  the  social  mission  of  the  law.  The  entail 
and  the  restriction  that  it  imposes  on  the  first  heir 
often  proves  a  great  obstacle  to  the  latter  in  the  develop- 
ment of  his  personality.  On  the  other  hand,  it  may  be 
advantageous  if  the  property  is  all  kept  together,  and 
descends  in  its  undiminished  totality  to  a  later  genera- 
tion. This  is  especially  the  case  because  a  provident 
generation  is  often  followed  by  an  improvident  one; 
in  this  respect,  this  institution  is  often  beneficial,  as  it 
saves  the  estate  for  the  third  generation.  To  what 
an  extent  this  whole  institution  is  a  social  need  is 
shown  by  the  fact  that  Roman  law,  which  at  first 
refused  to  recognize  it,  later  accepted  it  in  a  roundabout 
way;  that  is,  by  way  of  the  universal  fideicommissum, 
and  that  the  French  code  which  at  first  fought  tooth 
and  nail  against  this  institution  has  yet,  to  a  certain 
extent,  acknowledged  the  justification  of  its  existence. 
On  the  other  side,  such  dispositions,  tying  up  property 
as  they  do,  may  be  not  only  injurious  to  the  individual, 
but  a  menace  to  culture  as  a  whole. 

We  have  to  do  here,  as  always,  with  the  choice  be- 
tween two  systems,  of  which  each  has  its  advantages  and 
disadvantages,  and  in  this  case,  too,  special  cultural 
conditions  will  have  to  determine  in  which  system  the 
advantages  or  disadvantages  predominate.  We  assume, 
today,  that  a  certain  tying  up  of  property  cannot  well  be 
avoided,  but  that  it  must  be  within  certain  limitations, 
so  that  it  does  not  bind  whole  generations  and  cen- 
turies; for  otherwise  this,  too,  would  be  a  case  in  which 
individualism  would  dig  its  own  grave.  The  far-reach- 
ing hand  of  the  testator  who  would  enforce  his  will  in 


206  THE  LAW  OF   PROPERTY        [Cn.VII 

distant  future  generations  destroys  the  liberty  of  other 
individuals,  and  presumes  to  make  rules  for  distant 
times.  Of  course,  later  periods  will  not  always  acquiesce 
in  this,  and  thus  here,  too,  the  necessary  limitation  arises 
out  of  the  struggle  between  the  different  systems.  It  is 
usual,  therefore,  to  take  a  more  or  less  middle  course, 
and  to  allow  the  control  of  estates  for  a  certain  period  of 
time,  after  which  the  property  becomes  free. 

(d)  Of  most  particular  importance  is  the  possi- 
bility of  permanently  establishing  the  estate  in  such  a 
way  that  it  is  devoted  to  a  certain  definite  purpose,  and 
even  in  the  future  may  have  no  other  uses  but  to  serve 
this  purpose.  Such  dispositions  are  necessary,  since 
many  cultural  aims  can  only  be  accomplished  in  this  way; 
and  especially  is  it  of  high  value  that  certain  undertak- 
ings should  receive  steady  and  unceasing  support,  and 
should  not  be  cultivated  only  for  a  time  and  then  thrown 
aside.  The  audacious  daring  of  the  human  intellect 
requires  stability,  not  only  on  the  part  of  the  individual 
but  of  the  whole.  Only  thus  can  the  highest  aim  be 
attained,  whether  it  be  of  knowledge,  in  esthetic  or 
religious  education,  or  only  in  beneficence  and  economy. 

Thence  follows,  as  a  matter  of  course,  the  justification 
of  the  Foundation  as  an  institution,  and  the  demand 
that  the  law's  attitude  toward  it  shall  not  be  repellent 
but  encouraging.  On  the  other  hand,  the  dangers  must 
not  be  underestimated;  for  certain  aims  may,  possibly, 
be  only  of  temporary  significance,  and  certain  activities 
that  are  beneficial  at  the  time  may  run  counter  to  the 
interests  of  the  future ;  hence,  it  was  found  necessary  to 
impose  greater  or  lesser  restrictions.  Yet,  the  idea  of 
the  Foundation  is  a  fruitful  one,  and  important  both  in 
the  present  and  for  the  future.  It  has  been  much 
developed  in  the  Orient  and  in  the  Occident,  and  belongs 
to  the  bright  pages  of  the  Greek  system  of  law. 


§21]          NATURE  AND   IMPORTANCE  207 


B.     THE  LAW  OF  THE  BODY  POLITIC 


CHAPTER  VIII 
STATE  LAW 


FIRST   MAIN    DIVISION 
THE  STATE 


SECTION  XXI 
I.    NATURE  AND  IMPORTANCE 

1.     The  State  as  a  Personality 

1.  The  State  is  a  community  organized  into  a  per- 
sonality which,  by  virtue  of  its  own  law,  takes  upon 
itself  the  task  of  promoting  culture  and  opposing  non- 
culture;    and  it  aims  at  performing  this  task  not  only 
in  certain  respects,  but  in  all  the  directions  of  human 
endeavor  and  development.     Even  though  other  insti- 
tutions promotive  of  culture  may  exist,  as  well  as  the 
State,  yet  they  should  be  active  within  the  State  and 
by  virtue  of  State  organization,  penetrating  this  organ- 
ization in  such  a  way  that  they  too  become  parts  of 
State  life. 

2.  The  State  is,  therefore,  a  State  of  culture,  and  as 
such,  it  is  not  only  its  own  justification,  but  its  own 
sanctification.    To  doubt  the  State  is  to  doubt  culture; 
for  a  development  of  culture  without  a  systematized 
energetic  activity  of  the  whole,  and  without  the  necessary 
social  means  of  protection  is  an  impossibility. 


208  STATE  LAW  [CH.VIII 

3.  Hegel  expresses  this  by  declaring  the  State  to  be  the 
realization  of  the  rational  idea,  and  in  striking  words 
Nietzsche,  too,  has  explained  that  it  is  an  indignity  even 
to  call  the  State  to  account  and  ask  for  its  credentials.1 

4.  The  "culture"  State  stands  in  contrast  to  the  mere 
"legal"  State   that  was  much  taught  at  the  beginning 
of  the  nineteenth  century;    as  if  the  State's  sole  mission 
were  to  realize  and  establish  the  law  and  nothing  more. 
This  view  is  entirely  wrongheaded,  and  assigns  a  poor 
place  to  the  State  and  its  aims.    The  fact  that  formerly 
in   national    assemblies,    justice  was  pronounced,   laws 
were  made,  and  ordinances  were  issued,  does,  indeed, 
imply  a   certain   intimate  relation  to  the  administra- 
tion of  justice;    but,  only,  because  at  that  time  the 
different  activities  of  the  State  were  not  separated,  and 
all  its  functions  were  treated  equally  in  the  national 
assembly.     Hence,  no  support  can  be  found  in  this  for 
the  idea  of  the  "legal"  State. 

The  "legal"  State  is  of  importance  only  inasmuch  as 
the  State  should  be  not  alonea  "culture"  butalso  a  "legal" 
State.  Culture  having  created  not  only  the  law,  but 
also  rights,  the  State  should  not  overthrow  these  rights 
and  trample  them  underfoot;  but,  while  upholding 
them  as  far  as  possible,  should  proceed  with  the  develop- 
ment of  culture.  It  must  be  admitted  that  this  will 
sometimes  lead  to  conflicts;  for  the  demands  of  cul- 
ture often  require  the  downfall  of  existing  rights.  The 
solution  of  this  difficulty  lies  in  the  institution  of  expro- 
priation; that  is,  in  the  possibility  of  destroying  a  right 
by  giving  suitable  and  adequate  compensation.  Ex- 
propriation is  the  real  nerve  of  the  "legal"  State  in  its 
connection  with  the  cultural  State.  It  expresses  the 
progressive  inclination  of  the  "culture"  State,  in  contrast 
to  the  conservative  stability  of  the  "legal"  State. 

1  Compare  "Archiv  f.  Rechtsphilosophie,"  I.  p.  359. 


§21]          NATURE  AND   IMPORTANCE  209 

5.  As  has  been  said,  the  justification  of  the  State 
lies  in  this,  that  it  is  a  practical  union  of  men,  for  the 
purpose  of  opposing  whatever  is  contrary  to  culture, 
advancing  culture  in  all  its  forms,  and  furthering  the 
education  and  development  of  mankind. 

Man  cannot  act  effectively  except  in  such  collective 
unities.  It  might,  indeed,  be  put  forward  as  a  desidera- 
tum that  the  individual  State  should  only  be  a  subor- 
dinate member  of  one  great  whole;  but  the  time  is  far 
from  ripe  for  such  vast  ideas  of  universality.  The 
inhabitants  of  the  individual  countries  are  still  too 
different,  their  languages  and  methods  of  thought  too 
peculiar  to  themselves,  to  allow  of  any  such  union.  We 
are  only  attaining  to  a  kind  of  world-State  gradually, 
by  the  drawing  closer  together  of  the  individual  States, 
and  the  embodiment  of  the  community  of  cultural  en- 
deavors in  common  legal  institutions.  But,  as  long 
as  this  has  not  taken  place,  the  State  remains  the  repre- 
sentative of  culture,  to  whose  will  the  individual  must 
necessarily  bow,  and  which  is  allowed  to  oppose  resisting 
elements,  and  to  hold  antagonistic  forces  in  check.  It 
is  its  duty,  moreover,  to  force  home  the  knowledge  that 
ideals  rule  in  culture  which  no  nation  can  permit  to  be 
crippled. 

2.     The  State  and  the  Individual 

1.  The  State  cannot  exist  without  making  great 
demands  of  individuals.  It  even  requires  of  them  the 
service  of  body  and  life,  in  as  far  as  the  preservation  of 
the  whole,  the  independence,  or  the  honor,  and  the 
ideal  possessions  of  the  nation  are  concerned.  But  such 
sacrifice  is  the  less  oppressive  because  without  it,  not 
only  would  the  State  perish,  but  likewise  the  individual 
would  be  fettered  and  bound:  the  enemy  that  con- 
quers the  country  would  also  tyrannize  over  its  people. 


210  STATE  LAW  [CaVIII 

Hence,  the  individual's  devotion  is  not  disinterested 
sacrifice,  but  rests  on  the  co-operative  position  of  the 
individual  in  the  State. 

2.  Other  performances  that  are  required  are  the 
contribution  of  property,  also  necessitated  by  the  in- 
dividual's co-operative  position.  But  this  matter,  also, 
must  not  be  left  to  chance:  the  burden  must  be  suit- 
ably distributed.  The  better  regulation  of  this  distri- 
bution has  only  been  accomplished  in  modern  times, 
since  the  science  of  finance  has  established  the  standards, 
according  to  which  the  assessment  should  be  made. 
It  must  be  governed,  in  particular,  by  the  ability  to  bear 
it,  that  is,  by  the  possibility  of  the  individual's  making 
such  a  sacrifice  of  property,  according  to  what  he  pos- 
sesses: but  it  must  also  take  into  account  what  share 
the  individual  has  in  the  achievements  of  the  State. 
The  presentation  of  this  sphere  of  knowledge  leads  us 
into  the  realm  of  legislative  policy,  and  modem  social 
science,  and  may  therefore  be  omitted  here. 

3.    The  State  and  its  Organs 

1.  The  State  needs  a  staff  of  organs  that  are  active 
for  it  in  the  most  various  directions;  for  its  objects  are 
so  many-sided,  that  they  can  only  be  attained  if  a  large 
number  of  experts  devote  their  whole  power  to  these 
purposes.  Nevertheless,  the  State  must  not  be  merely 
a  bureaucratic  State.  It  is  a  vital  matter  that  also 
non-technicians,  so-called  laymen,  should  share  in  its 
government.  This  procures  not  only  obvious  and  direct 
advantages,  but  also  great  indirect  ones.  It  is  true  that 
the  layman,  as  regards  technical  education,  trained 
ability,  and  experience,  is  decidedly  inferior  to  the 
official,  but  his  activity  is  of  great  advantage  in  that 
it  prevents  State  institutions  from  ossifying,  and 
the  functions  of  the  State  from  becoming  one-sided. 


§22]  EVOLUTION  OF  THE  STATE  211 

It  invigorates  the  government  with  new  life,  new  views, 
new  experiences,  in  connection  with  the  rich  activities  of 
life.  The  government  should  not  be  lifted  entirely  out 
of  the  whole  national  life,  but  should  stand  in  the  centre 
of  it.  All  the  insight  of  the  citizens,  as  a  whole,  should 
be  made  of  service  to  the  State. 

2.  In  addition,  the  presence  of  the  layman  is  of  great 
indirect  importance;  for  it  preserves  the  unity  of  the 
State,  it  prevents  the  growth  of  impassable  chasms 
between  the  governing  and  the  governed,  between  those 
who  have  a  voice  in  the  conduct  of  the  State  and  the 
rest  of  the  people.  A  strong  dividing  wall  between  the 
two  is  a  great  evil :  it  fosters  division  among  the  people, 
and  leads,  especially,  to  a  lack  of  confidence  in  the 
government  and  its  measures,  and  to  the  fear  of  being 
taken  advantage  of  by  the  ruling  organs.  This  dis- 
appears when  men  of  the  people  enter  into  the  govern- 
ment, not  permanently,  but  temporarily,  and  with 
constant  changes ;  so  that  a  steady  stream  flows  from  the 
government  to  the  people,  and  from  the  people  to  the 
government.  This  is  for  the  most  part  also  the  signifi- 
cance of  the  national  assembly  and  of  the  parliament. 


SECTION  XXII 
II.     EVOLUTION  OF  THE  STATE 

1.  The  State  was  originally  a  totem  State,  and 
consisted  of  the  union  of  various  groups  bound  together 
by  the  unity  of  their  animal  god,  which  sacred  bond, 
however,  gradually  went  to  pieces,  leaving  the  clan  or 
family  tie.  This  is  based,  as  was  the  sacred  bond,  mainly 
on  the  unity  of  blood,  but  with  the  rejection  of  the 


212  STATE  LAW  [CH.VIII 

animal  god  which  had  fused  the  families  together  in 
one  uniform  spirit.  Worship  of  ancestors  then  took 
the  place  of  the  totem  belief,  and  it  is  the  spirits  of  the 
dead  that  hold  the  family  together,  give  stability  to  the 
clan,  and  in  the  worship  of  which  the  whole  finds  its 
consecration.  All  our  cultural  States  were  formerly 
clan-States;  and  in  the  unity  of  blood,  the  unity  of 
descent,  the  unity  of  their  view  of  life,  lay  their  strength. 
Such  a  clan-State  does  not  require  clearly  defined  terri- 
tory. It  remains  the  same  even  when  the  clans  wander. 
The  German  tribes  remained  as  they  were,  even  when 
they  wandered  from  the  Balkans  over  the  endless 
Russian  plains  to  the  Elbe,  from  there  to  the  Rhine,  to 
the  Rhone,  and  from  there  to  Italy;  and  it  is  just  the 
same  with  the  numerous  Bantu  tribes  and  Hamitic 
peoples  who  wander,  constantly  changing  their  place  of 
abode.  There  is  an  extraordinary  communal  nerve  in 
this  clan  connection;  and  it  is  comprehensible  that  all 
phenomena  of  life  under  these  conditions  are  social  in 
character;  and  that  all  thought  and  action  unite  in 
the  idea  that  each  individual  is  a  member  of  the  tribe 
whose  famous  ancestors  are  worshipped  as  divine,  and 
that  he  performs  his  great  deeds  in  the  sight  of  his 
forefathers. 

2.  A  tremendous  change  takes  place  when  the  tribal 
tie  gives  way  to  the  territorial  tie;  and  this  appears  in 
two  new  legal  institutions  which  embrace  all  life  and 
activity.  The  first  is  that  persons  are  received  into 
the  nation  who  do  not  belong  to  the  tribe;  so  that  the 
number  of  clans  and  families  can  constantly  increase; 
and  that  in  this  way  persons  enter  who  do  not  worship 
the  common  spirits  of  the  tribe,  and  whose  ancestors  are 
in  no  way  connected  with  the  ancestors  that  compose 
the  tribal  cult.  This  is,  of  course,  a  sign  of  a  certain 
decline  of  ancestor  worship,  and  the  clans  certainly 


522]  EVOLUTION  OF  THE  STATE  213 

must  have  felt  this  for  a  long  time,  and  have  persecuted 
the  intruders  with  all  their  might ;  nevertheless,  this  event, 
like  every  other  development  that  lies  in  the  hidden  folds 
of  the  world's  history,  cannot  be  prevented.  What  uni- 
versal history  desires  may  for  a  time  be  delayed  by  the 
mind  of  man,  but  cannot  be  permanently  suppressed. 
3.  A  second  factor  comes  under  consideration. 
Whereas,  formerly,  the  tribe  lived  in  and  to  itself,  includ- 
ing only  itself  and  its  slaves  in  the  sphere  of  its  power, 
and  leaving  its  neighbors  alone  even  when  they  lived 
on  the  same  land,  the  necessity  now  arose  of  exercising 
complete  dominion  over  a  certain  territory  in  which 
the  members  of  the  State  have  the  upper  hand.  Dis- 
putes with  those  living  outside  the  boundaries,  however, 
became  so  numerous  and  violent  that  there  was  no 
alternative  but  to  extend  the  authority  to  them  also; 
at  least  to  the  extent  of  repressing  certain  activities 
injurious  to  the  State,  establishing  certain  police  regu- 
lations, and  defending  the  State  against  the  encroach- 
ment of  this  alien  population.  Chieftainry  especially 
is  often  very  prominent  in  this  connection.  Herewith 
the  idea  of  the  territorial  State  is  firmly  established; 
not  only  do  the  tribes  admit  others  to  their  ranks,  but 
even  persons  who  are  outside  the  circle  of  those  belong- 
ing to  the  State  must  submit  to  the  commands  of  the 
ruling  people.  This  was  the  system  that  was  carried 
out  in  all  our  culture  States  after  the  destruction  of  the 
old  Germanic  principle  of  personality.  Only  in  the 
Orient  does  the  old  system  still  exist;  but  there  is  a 
privilege  that  the  Occidentals  with  their  high  culture 
have  obstinately  wrested  from  the  Orient:  the  Occi- 
dentals refuse  to  submit  to  the  law  and  jurisdiction  of 
Turkey  and  Persia,  and  wish  to  live  under  their  own 
laws  and  own  authority,  even  on  the  territory  of  these 
Oriental  States. 


214  STATE   LAW  [CH.VIII 

4.  A  further  division  into  classes  of  the  population 
is  sometimes   accomplished   by  way   of   conquest.     It 
often    happens   that    the   conquerors   force   back   the 
original  people  entirely,  or  so  decimate  them  that  they 
no  longer  play  any  part  in  the  life  of  the  State.     But 
not  infrequently  the  old  population  is  preserved  as  a 
second  layer  or  class,  if  for  no  other  reason  than  because 
the  conquerors  are  not  able  to  perform  all  the  useful 
labor  that  is  necessary  to  the  maintenance  of  their  life, 
and  hence  make  use  of  the  conquered  inhabitants  as  a 
servant  class.    The  latter  may  be  oppressed  and  held 
in  slavery  or  helotry,  or  they  may  be  granted  a  freer 
position,  partly  in  recognition  of  their  developed  civiliza- 
tion, partly  in  consideration  of  the  fact  that  free  labor 
appears  to  be  more  advantageous,  or  that  the  original 
people  are  so  far  masters  of  the  situation  that  the  con- 
querors must  live  on  terms  of  agreement  with  them, 
and  cannot  utterly  subjugate  them. 

In  this  way,  a  mixed  population  easily  arises  in  which 
the  conquerors  assume  the  r61e  of  masters,  and  form  a 
sort  of  nobility  in  contrast  to  the  lower  inhabitants. 
(Compare  p.  96.) 

Some  times,  another  layer  or  class  of  population  is  formed 
by  the  addition  of  some  other  people  that  is  dragged 
from  its  own  place  of  abode  and  settled  in  the  country. 

All  these  circumstances  oblige  the  tribal  State  to  adapt 
itself  to  the  altered  conditions,  and  to  blend  the  added 
elements  more  or  less  with  the  life  of  the  State. 

5.  In  the  transition  from  the  tribal  State  to  the 
territorial  State,  much  of  the  unity  of  the  people  is  trans- 
ferred to  the  State  territory,  and  the  State  system  of 
rulers  now  embraces  the  land  without  reference  to  the 
inhabitants. 

This  might  easily  lead  to  the  conclusion  that  a  man's 
residence  on  State  territory  established  the  fact  of  his 


§22]  EVOLUTION  OF  THE  STATE  215 

belonging  to  the  State.  This  of  itself  would  mean  a 
tremendous  transformation:  there  could  no  longer  be 
any  citizenship  independent  of  the  place  of  residence. 
But  such  a  development  could  only  thrive  if  the  aspira- 
tions and  endeavors  of  the  different  States  were  so  uni- 
form that  the  change  of  allegiance  from  one  to  another 
could  follow  without  a  displacement  of  interests.  Hence, 
it  was  possible  to  carry  out  this  system  in  a  confederacy 
of  States;  so  that  its  citizens  could  belong  to  one  or 
another  of  the  individual  States  according  to  their  resi- 
dence or  place  of  abode.  But  as  long  as  the  interests  of 
States  are  so  various,  indeed,  even  antagonistic,  and 
each  State  develops  independently  to  a  certain  extent, 
this  system  would  be  detrimental.  Neither  would  it  be 
ethically  desirable;  for  in  such  disputes  and  struggles, 
it  is  necessary  for  the  individual  to  adopt  a  certain 
definite  course,  and  to  make  the  collective  interests  of 
one  or  another  of  the  communities  his  own.  Hence,  it  is 
still  necessary  to  maintain  citizenship  apart  from  the 
place  of  residence,  and  to  give  it  a  greater  significance 
in  the  position  of  the  individual  in  legal  life;  also,  in 
particular,  to  combine  political  activity  with  citizenship. 

6.  In  spite  of  the  territorial  principle,  therefore,  the 
difference  between  citizens  and  aliens  still  exists;  and 
in  such  a  way  that  citizens  still  remain  citizens,  even  if 
they  settle  in  a  foreign  country ;  and  that  aliens  living  in 
the  State  must  indeed  submit  to  its  laws,  but  can  have  no 
part  in  the  government,  and  that  their  family  conditions 
are  regulated  according  to  their  hereditary  rights. 

Thus,  a  certain  disagreement  arises  which,  however, 
is  allowed  to  remain  as  long  as  it  is  not  dangerous  to  the 
State.  But  if  it  becomes  undesirable,  it  then  is  neces- 
sary to  drive  the  aliens  out. 

A  complete  solution  of  the  disagreement  has  never 
been  achieved,  and  will  not  be  here,  attempted.  A 


216  STATE  LAW  [CH.VIII 

compromise  has  been  adopted  by  some  States,  however, 
based  on  the  principle  that  in  certain  cases  the  alien 
becomes  a  citizen  without  further  steps.  Thus,  the 
rule  has  been  established  that  an  individual  born  in 
the  country  is  a  citizen,  or,  in  some  States,  only  if  also 
his  parents  were  born  there.  And  instances  are  not 
few  where  residence  for  some  time  suffices  to  give  aliens 
the  right  to  acquire  citizenship.  In  this  way  the  num- 
ber of  foreigners  living  in  the  country  can  be  reduced, 
and  the  discord  spoken  of  above  can  be  partly  avoided.8 


SECTION  XXIII 
III.    THE  STATE  IDEA 

1.    State  Theorists 

1.  The  whole  series  of  imaginative  representations 
of  the  State  based  on  a  lofty  conception  of  the  destiny 
of  man,  and  of  the  significance  of  the  State  in  the  develop- 
ment of  humanity,  began  with  Plato.     These  Utopian 
compositions  did    indeed  emanate  from  an  ideal   and 
visionary  mode  of  thought,  but  they  are  still  of  great 
importance  as  marks  at  which  a  perfection  of  the  State 
can  aim;   for  it  is  always  beneficial  to  humanity  if  the 
ideal  is  held  up  before  it. 

2.  Plato's  ideal  State  was,  it  is  true,  arbitrary  in  a 
high  degree.     He  disregarded  not  only  historical  facts, 
but  also  the  psychic  conditions  of  human  development, 
and   thus  gave    occasion    for  aspirations    which   with 
despotic  power  attempted  to   bring  about  a    definite 
new  order  of  conditions;    but,  not  being  in  harmony 

>  In  this  connection,  compare  my  essay  on  international  law  in  the 
"Z.  f.  Volkerrecht,"  Hi.  p.  113,  f. 


§23]  THE  STATE  IDEA  217 

with  the  psychic  conditions  of  the  peoples,  necessarily 
failed.  The  attitude  of  humanity  may,  indeed,  be  influ- 
enced from  without,  but  the  actual  motive  power  must 
proceed  from  the  soul  of  the  nation;  and  the  essence 
of  royalty  does  not  lie  in  forcing  everything  upon  the 
people,  but  in  the  ability  to  direct,  more  or  less  toward 
its  own  aims,  the  impulses  and  instincts  that  are  inherent 
in  the  people. 

Much  may  be  traced  to  Plato's  mood  and  to  his  depres- 
sion of  spirit,  in  regard  to  the  conditions  of  his  time.3 
Hence,  in  his  Utopia  we  find  both  remarkable  progress 
and  extraordinary  regression.  He  describes  the  sexual 
tie  as  group  marriage,  much  the  same  as  the  old  group 
arrangement;  so  that  it  is  not  known  of  any  child  who 
his  father  is,  scarcely  who  is  his  mother;  this  has  a 
connection  with  the  modern  idea  of  selection  and  State 
supervision  of  the  sexual  relation. 

Community  of  property  also  is  a  perfectly  antiquated 
phenomenon  which  the  Greeks  had  long  since  left  behind 
them;  while,  on  the  other  side,  no  one  before  Adam 
Smith,  at  least,  has  so  clearly  explained  the  advantages 
of  the  division  of  labor  as  Plato.  Exceedingly  progres- 
sive are  his  ideas  on  the  development  of  women,  to 
whom  he  would  give  a  position  in  the  life  of  the  State 
similar  to  that  occupied  by  men;  accompanied  by  com- 
plete dissolution  of  the  family,  however;  for  not  only 
are  the  children  to  be  trained  and  educated  by  the 
State,  but  even  the  suckling  of  infants  is  to  be  a  common 
duty. 

We  also  see  in  Plato  (as  in  Aristotle) 4  the  historical 
limitations  of  the  Athenian  philosopher;  work,  unless  it 
be  the  work  of  governing,  or  artistic  and  philosophic 
production,  is  to  him  low  and  slave-like,  and  is  there- 

«  Compare  Zalesky  in  "Arch.  f.  Rechtsph.,"  I,  p.  395.  645;    II.  p.  89. 
'See  above,  p.  95  (7).  177. 


218  STATE  LAW  [CH.VIII 

fore  left  to  a  lower  class  of  the  people,  who  are  treated 
more  and  more  like  bondmen.  This  is  the  grossest 
error  into  which  a  State  can  fall,  for  the  nobility  of  labor 
will  elevate  the  forces  of  the  people ;  and  by  the  increase 
of  technical  economic  production  alone  can  we  attain 
the  control  of  the  world.  To  this  may  be  added  that 
this  production  must  stand  in  the  closest  relation  to  the 
advance  of  our  scientific  knowledge  of  nature,  which  can 
only  be  the  case  if  technic,  too,  is  ennobled,  and  fully 
recognized  by  science  as  its  equal. 

3.  There  is  something  quite  unhealthy  about  the 
whole,  nor  is  it  clearly  thought  out.     What  must  repel 
us  most,  however,  is  that  a  man  with  such  an  artistic 
mind,  whose  art  in  dialogue  has  never  been  excelled, 
whose  language  is  the  delight  of  all  scholarly  men,  takes 
a  position  entirely  antagonistic  to  art,  and  rejects  its 
creations  as  deceptions  and  frauds,  failing  to  perceive 
that  it  is  just  art  that  can  best  present  his  ideals  and 
keep  before  our  eyes,  by  the  constant  creation  of  worlds, 
the  relativeness  of  the  sensible  world.     Aristophanes  has 
therefore  also  derided  Plato's  "Politics";    and  in  the 
work  of  his  old  age,  in  his  "Laws,"  Plato  has  materially 
changed  the  original  ideal,  though  scarcely  in  an  attrac- 
tive manner  —  the  State  that  he  describes  in  this  later 
work  is  an  agrarian  police-State  with  a  strictly  regulated 
family  regime. 

4.  The   whole   sophistry   and    world-remoteness   of 
Plato's  Utopia  has  been  ably  exposed  by  Aristotle  in  his 
inestimable  book  on  Politics.     In  contrast  to  this  arti- 
ficial State  compulsion,  Aristotle  goes  back  to  the  nature 
of  man  and  utters  the  famous  words  that  man  is  by 
nature  a  social  being,  and  that  the  political  community 
is  his  proper  natural  state.     Better  than  anyone  before 
or  after  him,  he  knew  how  to  show  that  man,  more 
than  any  other  creature,  was  created  for  companionship, 


§23]  THE  STATE  IDEA  219 

as  his  language  alone  proves.  He  even  says  strikingly 
that  the  State  naturally  existed  before  the  family  and 
the  individual,  a  remark  that  has  been  much  misunder- 
stood, but  which  is  fully  corroborated  by  our  present 
knowledge  of  primitive  conditions.  This  knowledge 
makes  it  certain  that,  originally,  the  individual  did  not 
come  to  the  fore,  but  existed  and  acted  only  as  a  member 
and  organ  of  the  whole.  And  he  also  asserts,  antici- 
pating Hobbes,  that  if  man  is  not  properly  governed,  if  he 
lacks  laws  and  rights,  he  might  become  the  worst  of  all 
creatures.  But  control  of  justice  must  emanate  from 
the  State,  that  is,  all  virtue  begins  with  the  community. 
From  this  grand  structure  he  then  undertakes  to  con- 
struct the  State,  after  which  he  ably  rejects  the  Utopias 
of  communism  and  ultra-collectivism.  He  points  out 
that  the  resources  of  the  earth  do  not  find  their  proper 
usefulness  except  by  the  participation  of  the  interests 
of  individuals,  and  emphasizes  that  two  things,  in  par- 
ticular, are  the  objects  of  man's  care  and  love:  what 
is  his  own,  and  what  he  longs  for.  What  makes  owner- 
ship a  boon  to  the  nations  is  that  each  individual  may 
devote  himself  to  own  property;  great  virtues,  like 
generosity,  cannot  make  their  appearance  until  the  indi- 
vidual has  possessions  that  he  may  call  his  own.  With 
the  sameweapons,  he  attacks  the  community  of  wives 
which  he  says  entirely  destroys  family  life,  and  dis- 
torts the  relation  between  children  and  parents;  for 
the  same  reason,  he  criticises  sharply  the  lax  discipline 
of  the  women  in  Sparta,  and  lays  stress  upon  the  fact 
that  essential  cultural  conditions  of  the  State  are  thereby 
disrupted.  He  also  turns,  with  remarkable  skill,  against 
the  inorganic  unity  that  would  arise  if  all  such  distinctions 
as  family,  village  community,  etc.,  were  removed,  and 
individuals  were  simply  merged  in  one  great  ungradu- 
ated,  disconnected  mass.  The  unity  must  be  organic, 


220  STATE  LAW  [CH.VIII 

just  as  in  music  the  symphony  must  not  become  simply 
a  monotone,  nor  rhythm  merely  a  single  measure. 

5.  Aristotle's  idea  of  the  State  could  not  reappear 
until  in  the  Middle  Ages,  when  Aristotle  himself  became 
known.  He  was  first  revealed  again  to  the  Occident 
by  the  Arabian  philosophers,  especially  Averroes,  Alfa- 
rabi,  and  Avicenna,  who,  however,  represented  at  the 
same  time  the  idea  of  Persian  sufism,  and  thus  became 
the  founders  of  Germanic  pantheism  which  in  its  day 
was  such  a  powerful  leaven  in  the  whole  development  of 
the  Middle  Ages. 

But  Aristotle's  theory  of  the  State  necessarily  con- 
flicted with  the  idea  of  imperialism,  for  Grecian  life  had 
never  had  to  do  with  a  great,  broadly  outlined  State, 
but  only  with  small  republics.  But  world  imperialism 
became  the  ruling  ideal  in  connection  with  the  Roman 
Empire,  and  the  policy  of  Charlemagne  who,  by  defend- 
ing the  papal  throne  against  the  Longobards,  gained  for 
himself  the  imperial  crown,  and  brought  about  the  trans- 
fer of  the  imperial  power  from  Rome  to  Germany.  A 
foundation  was  now  wanting.  The  theory  of  the  Chris- 
tian imperial  power,  the  belief  that  the  emperor  was 
the  successor  of  the  Roman  emperor,  dominated  the 
minds  of  men  for  centuries;  and  the  ablest  intellects 
endeavored  to  explain  the  nature  of  the  empire  and  its 
historical  origin.  It  was  assumed  that  the  choice  of 
the  emperor  had  rested  with  the  city  of  Rome,  and  that 
Rome  had  transferred  its  prerogative  to  the  German 
elective  body.5 

The  German  emperor  was  considered  to  be  the  emperor 
of  a  world,  not  the  king  of  a  country;  and  the  under- 
lying idea  was  the  union  of  the  whole  Christian  world  — 
an  idea  that  necessarily  took  deeper  root  because  the 
Occident,  owing  to  the  attacks  of  the  Saracens,  was 
*  See  my  treatise,  "Dante  als  Prophet."  p.  56  £. 


§23]  THE  STATE   IDEA  221 

obliged  to  combine  in  its  own  defense,  and,  in  the  Cru- 
sades actually  carried  out  the  unity  of  Christian  life. 

(a)     Church  and  State 

1.  In  the  relation  between  the  spiritual  and   the 
temporal  power,  there  are  three  systems,  all  of  which 
are  represented  in  the  nations.     One  is  Caesarean  papistry 
in  which  the  spiritual  and  the  temporal  power  are  invested 
in  one  person,  as  among  the  Peruvian  Incas,  and  in  the 
Caliphate;   or  the  relation  between  the  two  powers  is 
such  that  a  certain  agreement  and  harmony  are  assured ; 
as,  for  instance,  among  the  Aztecs,  where  a  member  of 
the  royal  family  was  the  chief  priest,  a   system  not 
indeed  equal  to  the  first,  but  in  some  respects  directed 
toward  the  same  ends.     The  third  system  is  the  oppo- 
sition of  the  two  powers  which  may  lead  to  tremendous 
struggles  and   conflicts,   prolonged  for  centuries;    but 
which,  on  the  other  hand,  has  the  double  advantage, 
that  in  this  way  the  intelligence  of  the  people  is  increased 
to  the  utmost,  because  each  of  these  powers  seeks  to 
attract  to  itself  the  leading  spirits  of  the  nation;    in 
addition,  this  conflict  will  be  a  protection  and  safeguard 
for  the  people,  each  power  affording  the  nation  protec- 
tion from  the  tyranny  and  arbitrariness  of  the  other. 
In  this  way,  the  conflicts  of  the  Middle  Ages,  beginning 
with  the  disputes  about  investiture,  to  the  bull  "unam 
sanctam"  and  the  decline  of  the  Imperial  idea,  should 
be  understood  and  appreciated.     It  is  entirely  unhistori- 
cal  to  place  one  side  or  the  other  in  the  wrong;    both 
together  were  effective  in  attaining  the  mediaeval  progress 
of  culture. 

2.  When  St.  Augustine  advanced  the  idea  of  the 
kingdom  of  God,  and,  in  contrast  to  it,  the  sinful  king- 
dom of  man,  people  necessarily  became  familiar  with  the 
idea  of  formulating  the  relation  of  the  universal  State 


222  STATE  LAW  [CH.VIII 

to  God  and  divine  government.  The  first  man  who 
constructed  a  comprehensive  State  system  on  this  basis 
was  an  Englishman,  John  of  Salisbury,  who  lived  in  the 
twelfth  century,  at  the  time  of  the  struggles  between 
Henry  II  and  Becket,  which  thoroughly  stirred  up  the 
question  of  the  relation  between  the  State  and  the 
Church.  This  was  a  few  decades  after  the  investiture 
dispute  had  convulsed  the  world,  and  aroused  thinking 
minds.  John  of  Salisbury  distinguished  between  divine 
and  earthly  Natural  Law.  He  stated  that  the  divine  law 
applied  also  to  rulers.  Whoever  exceeded  it  was  a 
tyrant  and  subject  to  the  law  of  resistance,  which,  in 
extreme  cases,  where  the  tyrant  was  incorrigible,  might 
even  bring  about  his  murder.  For  the  rest,  even  he 
advances  the  two  sword  theory,  and  infers  from  it  that 
royalty  is  granted  by  the  Church  which  can  also  recall  it. 
He  is  not  a  strict  curialist,  but  is  moderate  in  his  presen- 
tation as  in  his  life;  nevertheless,  he  may  be  reckoned 
among  the  founders  of  curialism.6 

3.  Thus  the  spiritual  and  the  temporal  power,  the 
divine  State  and  the  imperial  State  are  placed  opposite 
each  other,  and  conflicts  were  unavoidable. 

Besides  the  two  sword  theory,  there  were  also  other 
forms  of  thought  that  had  their  part  in  these  conflicts. 
The  relation  between  the  Church  and  the  State  was  con- 
sidered to  be  similar  to  that  between  the  sun  and  the 
moon ;  from  which  it  followed  that  the  State  shone  only 
with  a  borrowed  light ;  and  another  important  argument 
was  the  so-called  Constantinian  "donation"  which  con- 
sisted of  a  number  of  privileges  which  the  emperor 
Constantine  had  bestowed  on  Pope  Sylvester.  This  grant 
was  a  clear  fraud,  it  is  true,  but  it  was  not  known  to  be  so 
until  much  later;  for  centuries  it  was  one  of  the  corner- 
stones of  curialism.  Yet,  even  at  that  time,  it  was 

•  Compare  Schubert,  "Staatslehre  Johannes  v.  Salisburys." 


§23]  THE  STATE  IDEA  223 

objected  that  such  an  act  could  not  give  away  perma- 
nently essential  parts  of  State  power.  These  and  others 
were  the  arguments  of  the  curialists  and  Ghibellines, 
especially  of  Dante  in  his  Monarchia;  while  Marsilius 
of  Padua  went  even  farther,  and  advocated  the  complete 
subordination  of  the  Church  to  the  State,  on  the  ground 
of  the  sovereignty  of  the  people.7 

4.  The  idea  of  an  emperor  of  the  world  was  still  at 
its  height  in  the  thirteenth  century.  It  was  attacked, 
however,  not  only  by  the  curialists,  but  by  the  scholars 
of  France  and  England,  who  naturally  were  not  pleased 
with  the  idea  that  their  power  should  be  dependent  on 
the  Roman  Emperor.  Thus  in  John  of  Paris  and  in 
Dubois  we  find  a  reaction  from  the  whole  imperial  idea ; 
and  Occam  shows  clearly  that  the  day  of  world-imperial- 
ism was  over.  In  addition,  the  discovery  of  Aristotle's 
doctrine,  and  of  Averroism,  with  its  theory  of  the  collec- 
tive soul  of  the  people,  was  at  variance  with  the  imperial 
idea.  From  Aristotle's  doctrine,  the  theory  of  the 
sovereignty  of  the  people,  already  advanced  by  Mar- 
silius, was  developed.  Althusius  in  particular  presented 
it  in  a  very  pronounced  form,  while  Bodinus  developed 
the  doctrine  of  the  "majestas"  of  princes.8 

(b)     Contract  Theory  of  the  State 

1.  With  Hugo  Grotius  the  contract  theory  of  the 
State,  which  had  already  been  much  discussed,  became 
the  general  theory  of  the  educated  world.9  It  did  not 
indeed  remain  unassailed,  and  opponents  of  the  great 
Dutchman  were  not  lacking,  but  in  the  end  it  triumphed. 

'Compare  "Dante  als  Prophet,"  p.  61,  ff. 

'Compare  "Einfiihrung  in  die  Rechtswissenschaft,"  (3  ed.),  p.  128. 

'The  Spanish  exponents  of  natural  law  preceded  him,  of  whom  I 
shall  shortly  write  in  the  "Arch.  f.  Rechtsphilos."  Hugo  Grotius  studied 
thes£  Spaniards  industriously,  as  I  have  shown  in  an  already  published 
report  ("Z.  f.  Handels-  R."  vol.  69,  p.  377). 


224  STATE  LAW  [CH.VIII 

By  Staatsvertrag  it  was  meant  that  originally  men 
wandered  about  in  the  world  as  individuals,  but  find- 
ing that  such  a  planless  existence  did  not  suit  them 
they  combined,  and  agreed  to  renounce  certain  rights 
with  the  idea  of  furthering  their  united  interests.  There 
was  some  truth  in  this  theory — not  that  it  rested  on  an 
historical  basis,  for  the  historical  knowledge  of  that 
period  was  slight  —  but  the  consciousness  of  the  bene- 
fits to  be  derived  from  social  co-operation,  and  of  the 
innate  feeling  that  the  individual  lost  rather  than  gained 
by  isolation,  must  have  impressed  itself  on  the  age  with 
peculiar  power.  No  doubt  could  be  entertained  that  if 
mankind  had  once  been  scattered,  yet  the  impulse  to 
unite  had  necessarily  seized  upon  men. 

2.  Thus  an  original  contract  appeared  to  be  such  a 
self-evident  category  in  the  law  of  nature  that  no  doubt 
was  felt  that  it  involved  a  necessary  legal  premise.    The 
question  whether  such  an  agreement  once  made  would 
bind  humanity  forever  did  not  give  rise  to  such  grave 
doubts  in  the  minds  of  the  scholars  of  that  time  as  it 
would  at  the  present  day. 

3.  The  assumption,  that  formerly  men  had  wandered 
about  as  isolated  individuals,  was  indeed  entirely  mis- 
taken;   on  the  one  hand,  it  disagrees  altogether  with 
history;    and,  on  the  other,  it  is  completely  at  variance 
with  human  nature,  which  must  have  led  men  together 
from  the  earliest  times,  and  not  only  from  the  period  when 
the  world  was  already  full  of  worldly  wise  individuals. 

4.  The  content  of  this  State  contract  (Staatsvertrag) 
was  most  variously  characterized.     Quite  rightly  it  has 
been  already  emphasized  that  it   represents  merely  a 
framework  that  can  be  filled  in  with  everything  possible, 
for  which  reason,  nothing  can  be  done  with  the  idea. 
Everyone  can  assume  something  else  that  has  been  made 
the  subject  of  the  agreement  at  the  time,  whether  it 


§23]  THE  STATE   IDEA  225 

be  practical  or  unpractical.  In  this  connection,  the 
theories  of  Hobbes,  Spinoza,  and  J.  J.  Rousseau  in 
particular,  come  under  consideration. 

5.  One  of  the  most  interesting  constructions  is  that 
of   Hobbes,   who  based   the   most   extreme   despotism 
upon  it,  and  in   particular  defended  the  rule  of  the 
Stuarts  against  the  parliament  and  the  revolution.    He 
assumed  that,  at  the  time,  the  people  had  laid  everything 
at  the  feet  of  their  rulers;   for  that  was  the  only  way 
in  which  the  brute  in  man  could  be  subdued  and  rational 
principles  attained.     In  contrast  to  John  of  Salisbury, 
among  others,  he  declares  that  the  people  are  not  jus- 
tified in  proceeding  even  against  tyrants,  since  the  evils 
brought  about  by  such  revolutionary  desires  would  be 
worse  than  the  worst  tyrant.     Thus  the  State  is  the 
Leviathan  that  devours  everything. 

6.  The  method  of  Spinoza's  pantheism  is  antagonistic 
to  evolution,  and  could  not,  therefore,  offer  any  basis 
for  an  evolutionary  philosophy  of  law.     Hence,   it  is 
comprehensible  that  Spinoza  in  his  "Tractatus  Theo- 
logico-Politicus"  accepts  the  theory  of  the  State  con- 
tract.    He  elaborates  it  in  a  manner  that  is  suggestive 
of    Rousseau's   later   development,   but   his   treatment 
bears  traces  of  Hobbes's  method  of  thought.     (Compare 
"Tract.  Theo.-Pol."  xvi,  12  ff.)     Thus  he  teaches  uncon- 
ditional submission  to  the  command  of  the  State:    the 
command  of  God  could  only  be  appealed  to  in  opposing 
it,  if  there  were  an  undoubted  revelation  to  support 
the  appeal;    otherwise  the  decision  must  rest  with  the 
supreme  head  of  the  State  and  with  him  only;    for  if 
everyone  were  entitled,  on  the  ground  of  divine  com- 
mandment, to  appeal  against  the  law  of  the  State  it 
would  lead  to  the  greatest  evils  (xvi,  61  ff.).    This  is 
quite  similar  to   Hobbes's  doctrine,  and  Spinoza  thus 
arrives  at  a  Caesarean  papistry  of  the  worst  kind  (21, 


226  STATE  LAW  [CH.VIII 

22  ff.)>  in  which,  however,  the  chapter  on  liberty  of 
thought  and  religion,  stands  out  brilliantly  with  the 
splendid  words: 

"  N on  finis  reipublica  est  homines  ex  rationalibus  bestias 
et  automata  facere,  sed  contra  ut  eorum  mens  et  corpus  tuto 
suis  functionibus  fungatur  et  ipsi  liber  a  ratione  utantur" 

Such  an  individualistic  treatment  is  not  indeed  in 
accordance  with  pantheism,  and  even  if  in  his  philosophy 
Spinoza  could  not  find  the  evolutionary  historical  nerve, 
yet,  the  thought  of  the  solitariness  of  the  Divine  Being 
must  have  affected  him,  to  the  extent  of  causing  the 
idea  of  the  organic  growth  of  the  State  from  within  to 
dawn  upon  him;  and  he  repeats,  though  timidly,  the 
principle  of  man's  being  an  " ]  animate  sociale."  The 
change  followed  in  his  "Tractatus  Politicus,"  ii,  15  ff. 
There  the  State  contract  disappears,  and  at  the  same 
time  he  swings  completely  round  from  voluntarism  to 
rationalism.  The  State,  too,  is  subject  to  laws;  it  too 
may  sin  by  establishing  institutions  that  bring  about 
its  ruin,  and  are  contra  rationis  dictamen.  The 
State  must  observe  the  bounds  of  reason,  and  thus 
preserve  its  majesty;  for  it  cannot,  at  the  same  time, 
be  and  not  be.  ("Tract.  Polit."  iv,  4.)  Of  course, 
here,  too,  we  find  Spinoza's  characteristic  emphasis  of 
religious  liberty  based  on  the  original  ground: 

"Omnia,  ad  qua  agenda  nemo  pr&miis  aut  minis  induct 
Potest,  ad  jura  civitatis  non  pertinent" — Tract.  Polit.  iii,  8. 

7.  Jean  Jacques  Rousseau,  on  the  contrary,  assumed 
that  the  people  only  delivered  themselves  into  the 
hands  of  the  ruling  power  to  a  very  limited  extent.  They 
remained  in  the  background,  and  were  entitled  to  inter- 
fere if  their  ruler  did  not  govern  according  to  their 
ideas;  and  he  believed  that  in  all  difficult  situations 


523]  THE  STATE   IDEA  227 

the  government  of  the  people  should  be  heard.  This 
power  of  the  people,  he  maintained,  was  the  first  and  the 
last  resort,  and  had  unbounded  scope.  Thus,  Rousseau's 
contrat  social  became  the  war  cry  of  the  Revolution. 
It  introduced  .the  revolutionary  Assembly  whose  history, 
a  succession  of  waves  of  disorder,  was  nothing  but  the 
logical  presentation  of  Rousseau's  doctrine,  which, 
theoretical  as  it  was,  did  not  reckon  with  the  tremen- 
dously destructive  forces  of  the  human  soul. 

2.    Statesmen 

1.  In  contrast  to  the  theorists  of  State  law  are  the 
statesmen  who  were  not  concerned  with  putting  forward 
reasons  for  the  justification  of  the  State  but  with  find- 
ing its  best  form.     The  profoundest  statesmen  of  this 
sort  were,  on   the  one   side,    Niccolo  Machiavelli,  at 
the  end  of  the  fifteenth  century,  and,  on  the  other, 
Locke  and  Montesquieu  in  the  eighteenth. 

2.  Machiavelli's    "Principe"   is  a    "Principe"   of  a 
period  when  the  political  virtues  were  lacking;    hence, 
when  it  was  necessary  to  attain  the  power  without 
which  the  future  of  the  State  was  hopeless,  by  reckless 
unscrupulousness.     The  "Principe"  ceases  to  be  repel- 
lent if  it  is  regarded  as  a   cultural,  historical  study, 
arising  from  the  rich  experiences  of  that  time,  and  the 
fine  and  penetrating  intellect  of  the  great  historical 
scholar.    The  dubious  point  lies  in  this,  that  the  "Prin- 
cipe" seems  to  have  won  the  heart  of  its  able  writer, 
and  was  held  up  as  a  shining  example.    This  may  rest 
on  the  moral  obtuseness  that  characterized  the   time 
of  Alexander  VI.     But  it  may,  also,  be  due  to  evolu- 
tionary historical  philosophy  which  holds  the  idea,  that 
where  the  history  of  culture  requires  it,  morality  must 
become  a  secondary  consideration.     Machiavelli  may, 
however,  and  this  is  what  Spinoza  and  others  assumed, 


228  STATE  LAW  [CH.VIII 

have  desired  to  hold  up  the  frightful  image  of  a  "Prin- 
cipe" to  the  view  of  the  Florentines  as  if  he  had  said: 
"See,  this  is  what  it  will  come  to,  if  you  insist  on  having 
a  prince.  He  will  be  a  rod  to  you ;  he  will  chastise  you 
with  lashings  and  scorpions,  for  otherwise  he  could  not 
be  sure  of  his  life." 

With  a  man  of  such  fine  perceptions  as  Machiavelli, 
however,  it  is  impossible  to  say  that  he  was  led  only 
by  one  of  these  motives;  probably  he  had  several.  His 
"  Disco rsi"  show  that  he  did  not  advocate  a  permanent 
dictatorship,10  but  regarded  it  only  as  a  step  towards  the 
attainment  of  a  real  supremacy  of  the  people.  In  any 
case,  the  "Principe"  is  a  cultural  portrait  of  the  Rena- 
scence; like  no  other,  a  sombre-hued  picture  of  a  certain 
definite  period;  for  his  assertions  do  not  fit  any  other 
epoch.  The  political  parties  of  the  present  day  are 
neither  so  enduring  that  it  is  necessary  to  get  rid  of 
the  resisting  families  in  order  to  obtain  the  reins  of 
government;  nor  could  such  a  system  of  hypocrisy  be 
carried  out  with  the  success  that  Machiavelli  describes, 
in  an  age  like  ours  with  the  publicity  and  constant  criti- 
cism to  which  the  mental  lives  of  those  who  make  his- 
tory are  subject  in  the  press.  When  he  says:  "Few 
know  what  you  are,  everyone  knows  what  you  appear 
to  be,"  we  must  retort,  that  today,  indeed,  it  may  be 
possible  for  the  semblance  to  which  the  reality  gives 
the  lie  to  endure  for  a  time,  but  certainly  not  for  long. 
Thus,  we  have  passed  beyond  the  Renascence  period. 

3.  Locke's  doctrine,  in  contrast  to  Machiavelli's, 
did  not  emanate  from  constructive  reflections,  but  was, 
rather,  purely  the  result  of  English  observation;  the 
parliament  having  been  in  existence  for  centuries,  and 
parliamentary  rights  having  been  considerably  increased 

"Compare  Alfred  Schmidt,  "Niccolo  Machiavelli"  (1907).  and  my 
review  in  the  "Zeitschrift  f.  Socialwissenschaft"  XI,  p.  654. 


§23]  THE  STATE   IDEA  229 

since  the  Bill  of  Rights.  The  important  thing  was  to 
formulate  a  system,  according  to  which  legislation 
should  not  be  left  entirely  to  the  individual  sovereign, 
but  would  require  the  consent  of  parliament,  for  so  it 
was  in  England.  This  he  sought  to  present  through  the 
following  luminous  idea:  the  administration  of  the  law 
must  be  just  but  in  order  to  attain  this  it  must  not 
proceed  from  the  same  organ  as  legislation;  for  if  that 
were  the  case,  this  organ,  by  means  of  a  special  law, 
could  displace  the  general  law  and  disregard  it  in  the 
administration  of  justice;  thus  there  would,  indeed, 
be  no  stability  in  the  laws.  Hence  the  separation  of  the 
legislative  and  administrative  power  was  necessary. 

4.  This  idea  was  much  more  impressively  presented 
by  Montesquieu  in  his  celebrated  work,   "Esprit  des 
Lois."    There  the  three  powers  were  sharply  divided ;  the 
judicial  power  especially  was  established  as  a  third, 
with  the   peculiarity   that  the  judges  should  be  inde- 
pendent, and  should  not  act,  as  formerly,  merely  as 
the  council  of  the  king. 

This  doctrine  of  the  division  of  the  powers  exercised 
a  tremendous  influence  on  the  future,  and  contributed 
not  only  to  clarify  the  activity  of  the  State,  but  also, 
through  the  idea  of  the  sacredness  and  independence  of 
the  judicial  office,  to  further  security  and  confidence 
in  the  administration  of  justice.  In  addition,  this  theory 
was  a  support  for  constitutional  government,  and  a 
letter  of  defiance  to  the  absolute  monarchy. 

5.  Next  to  the  doctrine  of  the  three  powers  came 
the  doctrine  of  the  rights  of  men.     It  contended  that 
men  were,  indeed,  subject  to  the  power  of  legislation, 
and  absolutely  at  the  mercy  of  its  might;   but  that,  on 
the  other  hand,  the  individual  as  a  legal  subject  has 
certain  inalienable  rights  as  regards  the  administration 
of  justice;  and,  further,  that  the  obligation  rests  upon 


230  STATE  LAW  [CH.VIII 

legislation  to  protect  the  existing  rights  of  the  individual, 
as  far  as  possible.  This  doctrine  originated  with  the 
dissenters  who  emigrated  to  America,  and  was  then 
accepted  during  the  French  Revolution  with  the  greatest 
fervency.11 


SECTION  XXIV 

IV.    THE  ORGANIZATION  OF  THE  STATE 
1.      General  Remarks 

1.  There   can   be   no   universal    standards   for   the 
organization  of  the  State.     People  are  in  error  when 
they  assume  that  one  kind  of  State  constitution  is  to  be 
regarded  as  the  highest,  as  the  final  aim  of  development, 
toward    which    eventually   all    countries    must   strive. 
This  is  a  relapse  into  the  ideas  of  Natural  Law,  even 
though   it  be   in   Hegel's   refined   manner.     In   reality 
States  that  are  quite  differently  organized  may  attain 
the  highest  point  to  which  their  powers  can  carry  them; 
and  we  need  only  emphasize  that  one  people  will  find 
the  right  expression  of  its  national  being  in  one  form, 
another  in  a  different  one. 

2.  To  develop  the  difference  of  these  State  constitutions 
is  a  matter  for  general  State  law.     It  is  only  necessary 
to  remark  that  the  idea  of  organization  may  vary  greatly. 
It  may  be  that  certain  persons  are  destined,  once  for 
all,  to  guide  the  State,  a  conception  that  formerly  rested 
on  a  religious  mystical  view,  as  if  the  godhead  and  the 
power  of  the  world  pressed  the  staff  of  government  into 
the  hand  of  one  person  or  one  family;  or  it  may  be  the 
general  national  idea,   according  to  which  the  people 

"  "Einfuhrung"  (3  ed.),  P-  126.     The  idea  of  the  rights  of  men  is  moat 
beautifully  expressed  in  the  American  Declaration  of  Independence. 


§24]       ORGANIZATION  OF  THE  STATE         231 

are  destined  to  rule,  and  must  themselves  form  their 
own  organization ;  the  one  its  the  monarchical  the  other 
the  republican  system. 

3.  Many   systems   long   outlive   the   original   ideas 
from  which  they  sprang,  and  thus  it  is  with  the  monar- 
chical system.     We  do  not  believe  that  the  powers  that 
rule  the  world  are  any  more  concerned  with  an  individual 
family  or  person  who  is  to  rule  than  with  the  destinies 
of  men  generally;    we  believe  that  they  are  connected 
with   individual   persons,  only  in  as  far  as   the  whole 
development  of  humanity  emanates  from  a  higher  prin- 
ciple; we  do  not  believe  in  special  intervention  in  indi- 
vidual  cases.     Nevertheless,  the  monarchical  idea  will 
continue  to  stand;  it  is  justified  by  a  variety  of  circum- 
stances  which   are   discussed   below.     Hence,    even   if 
another  view  has  been  accepted,  it  is  right  that  a  legal 
institution  which  belonged  to  a  former  conception  of  life, 
and  that  has  proved  to  be  valuable,  should  be  retained.1* 

4.  That  organization,  under  which  a  person  or  a 
family  is  called  to  the  highest  leadership,  not  by  virtue 
of  the  will  of  the  people,  but  by  reason  of  circumstances 
that  are  independent  of  it,  is  called  a  monarchy ;  although 
in  fact,  it  may  also  be  a  dyarchy;  and  this  also  applies 
to  an  elective  monarchy,  because  in  this  case  the  under- 
lying idea  is  not  that  the  monarch  draws  his  royal  author- 
ity from  the  people,  but  that  the  people's  choice  is  only 
a  method  of  finding  the  right  person,  that  is  to  say,  the 
one  that  Providence  has  destined  to  rule. 

5.  Where  it  is  assumed  that  the  highest  authority 
is  bestowed  by  the  people,  is  drawn  from  the  people  in 
assembly,  we  speak  of  a  republic;   the  idea  of  govern- 
ment by  the  people  may  be  more  or  less  pronounced 
in  it,  according  to  whether  the  supreme  head  of  the 
State,  after  once  he  is  elected,  is  independent  of  the 

11 1  need  not  enter  into  a  discussion  with  those  who  are  unable  to  grasp 
this,  and  therefore  accuse  me  of  political  mysticism. 


232  STATE  LAW  [CH.VIII 

governing  organs  of  the  whole  people,  or  must  entirely 
subordinate  himself  to  them. 

6.  Both  in  the  republic  and  in  the  monarchy  collec- 
tive organs  may  exist  beside  the  highest  organ;   that  is, 
organs  that  embrace   the  individual   members  of  the 
State.    The  true  collective  organ  of  this  kind  is  the 
popular  assembly.     It  is  extremely  ancient,  but  has  not 
been  able  to  maintain  itself  in  larger  States  because  the 
membership  was  too  extensive,  and  it  proved  too  diffi- 
cult for  its  sessions  to  be  held  in  definite  places,  so  it 
was  wrecked  on  the  reality  of  life. 

7.  The  collective  organ  of  the  people  may,  however, 
consist  of  an  elected  circle  of  members  of  the  people  who 
act  in  the  place  of  the  totality.     Such  a  supreme  organ 
that  is  wholly  or  partly  elective  is  called  a  parliament. 
In  what  is  called  the  upper  house,  other  circumstances 
than  election  may  determine  the  membership,  and  even 
in  the  so-called  lower  house  all  the  members  are  not 
always  counted. 

2.     Kingship 

1.  There  is  scarcely  another  institution  that  has 
done  so  much  for  the  growth  of  culture  as  chieftainry, 
the  consequence  of  the  peculiar  psychic  constitution  of 
humanity,  of  the  suggestive  influence  of  strong  natures, 
and  of  the  tremendous  power  which  the  recklessness 
and  superiority  of  individual  genius  exercises  over  other 
persons;  in  other  words,  the  consequence  of  super- 
mankind  and  of  the  existence  of  overpoweringly  strong 
natures.  The  spirit  of  history  was  obliged  to  use  this 
means  in  order  to  advance  mankind,  even  though  it  were 
by  force  and  compulsion;  for  such  strong  natures  are 
able  to  arouse  and  stir  up  the  nations  and  to  overcome 
a  stagnant  and  halting  evolution.  Certain  progressive 
movements  of  culture  are  always  agreeable  to  them,  and 


§24]       ORGANIZATION  OF  THE  STATE         233 

in  order  to  bring  these  movements  about,  they  apply 
powerful  methods  which  universal  history  would  not 
otherwise  know.  Their  effect  may  be  likened  to  that  of 
a  volcanic  eruption  which  does  indeed  work  great  destruc- 
tion, but  also  raises  up  new  lands,  and  brings  them  within 
the  reach  of  culture. 

2.  The  historical  beginnings  of  chieftainry  are  prob- 
ably originally   to  be   found   principally   in  bands  of 
youths;    at  any  rate,  to  a  great  extent,  though  not 
exclusively.     In  other  ways,  too,  a  bold  warrior  or  power- 
ful  brigand  could  seize  the  authority  of  a  chief.     The 
dangers  that  threatened  a  community  from  outside,  in 
particular,   frequently  gave  rise  to  autocracy;    for  it 
required  a  strong  and  ingenious  personality  who  could 
inspire  the  mass  and  hold  it  to  withstand  attacks  from 
without.     If  once  such  an  individual  by  victory  has 
averted  the  external  danger,  he  gains  the  confidence  of 
the  people,  and  there  is  no  limit  to  his  power  within  the 
nation;  successes  abroad  have  always  served  as  a  shield 
and  cloak  for  the  true  tyrant. 

3.  When  once  the  chieftain  has  obtained  control,  it 
will  later  be  possible  for  him  to  surround  himself  with  a 
religious  nimbus.     Provided  the  priests  are  not  against 
him,  it  is  easy  for  him  to  appear  as  the  son  of  heaven, 
or  of  the  sun,  or  as  some  kind  of  divine  messenger,  and 
to  act  as  the  exponent  of  the  divine  law.     The  result  will 
be  that  the  whole  foundation  of  the  law  is  displaced, 
and  that  the  law  will  appear  as  an  issue  of  his  per- 
sonality.    Now  he  is  in  a  position  to  sway  and  rule  the 
people  at  will.     Thenceforward,  his  subjects  are  mere 
tools  in  his  hands,  and  the  sacred  relics  of  tradition  dis- 
solve under  his  power  as  soon  as  he  desires  it;  as  soon 
as  he  seeks  the  advantage  of  the  State  in  something  else. 

The    further    presentation    of    chieftainry    and    the 
development  of   the  idea  among  the  different  nations 


234  STATE  LAW  [CH.VIII 

does  not  lie  within  our  province;  but  it  is  certainly  our 
task  to  describe  what  chieftainry  did  for  the  develop- 
ment of  culture,  and  how  it  later  became  kingship. 

4.  Its  influence  on  culture  undoubtedly  lies  mainly 
in  this,  that  it  protected  the  country  against  outside 
enemies,  and  thus  secured  the  peace  and  quietude  neces- 
sary to  its  inward  development.     In  addition,  it  fur- 
thered the  idea  of  the  State  and  repressed  the  constant 
dissipation  of  the  population  by  kin-revenge  and  self- 
vindication;  for  the  chief  wishes  to  maintain  order  and 
strives,  in  order  to  extend  his  power,  to  take  the  adminis- 
tration of  justice  entirely  into  his  own  hands.     He  is 
also  inclined  to  develop  the  resources  of  the  country; 
for  the  more  it    produces,   the  more  his  power  and 
wealth  are  increased,  as  he  alone  controls  the  country's 
goods. 

5.  Chieftainry    develops    into    kingship    under    the 
influence  of  two  ideas:   first,  the  idea  that  permits  the 
State  as  well  as  the  chief  to  be  recognized  as  a  per- 
sonality.    Even  though  the  chief  be  the  unrestricted 
representative  of  the  State,  yet  the  conception  is  unavoid- 
able that  he  has  the  State  in  his  hands  only  tempo- 
rarily, and  this  again  will  give  rise  to  the  thought  that 
he  is  only  an  organ  of  the  State  and  that  the  latter, 
though  it  be  temporarily  embodied  in  him,  is  yet  dis- 
tinct from  him. 

The  second  important  idea  is  that  of  duty,  the  thought 
that  the  advantage  of  the  chief  is  not  the  sole  considera- 
tion, and  that,  as  an  organ  of  the  State,  he  must  act  for 
its  benefit.  This  idea  can  only  develop  fully,  of  course, 
where  the  conception  of  morality  is  already  grown. 
Nevertheless,  it  must  appear  in  earlier  times  in  the  form 
of  a  religious  commandment,  wherever  religious  notions 
have  become  firm  enough  to  allow  clear  principles  and 
regulations  to  be  formulated;  for  which,  above  all 


§24]       ORGANIZATION  OF  THE  STATE         235 

things,  a  separate  priesthood  is  necessary  which  as  the 
exponent  of  the  good  may  succeed  in  upholding  religion, 
even  when  opposed  to  the  ruler.  Wherever  this  religion 
exists,  it  will  require  logical  action  in  certain  directions, 
and  the  indulgence  of  certain  considerations,  and  will, 
therefore,  also  demand  of  the  sovereign  that  he  shall 
not  give  way  to  his  moods.  Thus,  the  way  is  levelled 
for  further  development;  and  whoever  feels  it  his  duty 
to  care  for  the  welfare  of  the  people,  who  even  takes  an 
oath  to  do  so,  as,  for.  instance,  among  the  Aztecs,  is  no 
longer  a  chief  but  a  king. 

6.  Kingship,  like  chieftainry,  has  a  great  task  to 
perform  in  the  development  of  culture,  and  this  is  accom- 
plished in  several  ways. 

(a)  The  person  who  acts  is  firmly  established  in  his 
place,  and  can  therefore  influence  certain  cultural  ten- 
dencies far  more  incisively  and  logically  than  can  any 
other  organ  of  the  State.  This,  of  course,  also  involves 
a  great  weakness:  the  personality  of  the  sovereign  be- 
comes of  extreme  importance,  and  there  are  wide  mental 
and  psychic  differences  among  personalities.  One  per- 
son may  be  fitted  by  nature  to  rule,  while  another  lacks 
all  talent  in  this  direction.  It  has  been  attempted  to 
solve  this  difficulty  by  making  kingship  elective;  so 
that  in  this  way  a  person  could  be  chosen  who  had 
already  proven  by  his  deeds  that  he  was  suited  to  the 
office;  but  this  system  failed,  because  it  led  to  corrup- 
tion, and  to  constant  upheavals,  and  to  internal  struggles. 
A  modified  form  of  elective  kingship  is  found  among 
some  peoples,  where  of  the  members  of  the  royal  family, 
one  is  chosen  to  reign  who  appears  to  be  particularly 
able;  or,  in  some  nations,  a  member  who  proves  to  be 
unfitted  is  deposed  in  favor  of  another  member.  But 
this  system  also  gives  rise  to  many  disputes,  quarrels, 
and  enmities. 


236  STATE  LAW  [CH.VIII 

(6)  Kingship  brings  with  it  a  certain  strengthening 
of  the  whole  situation  and  frequently  also  greater  pro- 
tection against  danger  from  without. 

(c)  It  may  prevent  not  only  destructive  movements 
among  the  people  from  gaining  the  upper  hand,  but  also 
the  appearance  of  powerful  party  elements  which  in  the 
form  of  plutocracy,  class  spirit,  and  party  tyranny  are  a 
hindrance  to  the  real  progress  of  the  State. 

(d)  Kingship  may  create  an  intellectual  centre,  and 
advance  both  arts  and  sciences ;  though  such  an  arrange- 
ment is  not  without  its  disadvantages;    for  the  bad 
features  of  the  patronage  of  a  Maecenus  are  often  in- 
creased if  such  patronage  exists  by  the  grace  of  the 
king. 

7.  The  principal  remedy  against  the  disadvantages 
of  kingship,  especially  in  as  far  as  they  relate  to  the 
contingency  involved  in  getting  an  able  personality  for 
the  head  of  the  government,  is  to  place  other  powers 
beside  the  king,  such  as  the  popular  assembly  or  repre- 
sentatives of    the    people   (to  which  we  shall    return 
later),  and  the  ministry. 

8.  Like  parliament  and  parliamentary  government, 
the   system   of   ministerial   assistance   and   ministerial 
responsibility  orginated  in  England.    According  to  this 
system,  the  king  does  not  act  alone,  but  requires  minis- 
terial assistance,  so  that  acts  of  the  State  are  only  valid 
if  the  minister  also  assigns  them.     This  is  important 
because  it  makes   the  minister  co-responsible;    hence, 
it  will  be  difficult  for  the  king  to  find  a  minister  who 
will  sign  an  act  that  contains  an  undeniable  infringement 
of  the  constitution,  and  which  would  therefore  involve 
the   minister   in   difficulties.      This   is   also   significant 
where  the  parliamentary  system  does  not  exist,  and 
much  more  so,  of  course,  with  parliamentary  govern- 
ment. 


524]       ORGANIZATION  OF  THE  STATE         237 

9.  In  this  way  the  outgrowths  of  the  popular  assem- 
bly and  chieftainry  have  become  the  constitutional 
monarchy,  in  which,  it  is  true,  somewhat  complicated 
institutions  appear.  But  it  is  just  these  complications 
that,  by  the  constant  co-operation  of  a  system  of  forces, 
serve  to  protect  the  State  from  excesses  and  narrow  judg- 
ments, and  to  further  the  full  consideration  and  investiga- 
tion of  all  important  factors  entering  into  government. 

3.    The  Popular  Assembly 

1.  The    popular  assembly,   one    of    the    oldest    of 
national   institutions,  a  centre  of  justice  even  in  the 
earliest  ages,  and  at  the  same  time  the  court  before 
which  all  internal  affairs  were  settled,  put  forth  off- 
shoots up  until  within  modern  times;    even  though  it 
became  impossible,  with  the  extension  of  the  power  of 
the  State,  to  maintain  it  in  its  purity.    As  all  defenders 
of  the  popular  assembly,  even  eventually  J.  J.  Rousseau, 
have  recognized,  it  is  only  suited  in  its  true  form  to  small 
unions;  and  if,  under  other  conditions,  it  is  desired  to 
preserve  its  fundamental  ideas  it  is  necessary  to  trans- 
form it  completely. 

2.  The  idea  of  the  popular  assembly  is  this :  it  is  the 
totality  of  the  people,  and  if  it  determines  something, 
its  decision  is  not  to  be  regarded  as  a  resolution  of  the 
majority,  but  as  the  expression  of  the  organic  unity 
of  the  nation ;  for  the  spirit  of  the  people  is  made  mani- 
fest in  it.    Not  until  later  is  the  conviction  reached  that 
here,  too,  it  is  the  individual  mind  that  rules,  and  a 
strong  minority  will  sometimes  make  this  very  .  pro- 
nounced.    But  this  knowledge  does  not   ripen   until 
later,  when  the  conciousness  of  the  individual  person- 
ality has  awakened. 

3.  The  idea  of  the  popular  assembly  is  so  mighty 
that  even  chieftainry,  however  much  it  might  overthrow 


238  STATE  LAW  [CH.VIII 

the  previous  State  organization,  could  not  help  making 
certain  concessions  to  it;  if,  solely,  because  chief tainry 
itself  was  striving  to  be  national  and  to  live  with  the 
people.  (Compare  above,  p.  234.) 

4.  The  institution  of  the  popular  assembly  can  be 
retained  in  larger  States  in  the  form  of  the  representative 
constitution.     This  may  be  in  two  ways.     Either  the 
nation  is  regarded  as  a  whole  that  sends  representatives 
from  its  midst,  or  it  is  the  different  classes  of  the  people 
that  appear  for  the  nation.    The  latter  is  particularly 
the  class-constitution  which  was  frequent  in  the  Middle 
Ages,  but  could  not  be  maintained;   because  a  constant 
mixing  of  the  classes  took  place,  and  because  the  atti- 
tude of  the  classes  became  unavoidably  the  hotbed  of 
selfish   ambitions.     This   class-constitution   has   there- 
fore no  longer  any  future.    It  is  dead,  and  its  death  was 
unavoidable;    while  representation  of  the  whole  arose, 
and  not  only  thrived  from  the  time  of  its  origin,  but 
has  developed  vigorously;    for  it  has  at  the  same  time 
the  great  advantage  that  it  represents  a  union  of  the 
people,  and  it  is  certainly  the  mission  of  our  institu- 
tions not  to  breed  discord  but  harmony  of  the  whole. 
If  factions  and  antagonistic  tendencies  develop  in  the 
nation,  these  will  indeed  appear  in  the  creation  of  the 
parliament,  but  will  not  become  fixed  as  they  would 
under  the  dominion  of  the  class-constitution.    They  will 
remain  in  constant  motion,  and  new  parties  will  con- 
tinually  form,     and   new  disputes   and  reconciliations 
will  continually  appear. 

5.  That   kind   of   representation   under   which   the 
representation  proceeds  from  the  totality  of  the  people 
arose  in  exemplary  form  in   England,  and  has  spread 
in  modern  times  from  there  over  nearly  the  whole  do- 
main of  Christian  civilization.     It  controls  all  monar- 
chical States,  with  few  exceptions,  as  well  as  ^publics, 
which,  with  its  aid,  have  gained  new  vitality. 


524]       ORGANIZATION  OF  THE  STATE         239 

6.  The  representative  assembly  that  is  constituted 
in  this  way  is  designated  by  the  general  name  of  par- 
liament;   it  must  be  borne  in  mind,  however,  that  in 
most  cases  it  was  England's  example  that  was  followed, 
and  this  led  to  the  formation  of  a  second  legislative 
department  besides  the  elective  parliament,  called  the 
House  of  Lords,  the  Upper  Chamber,  etc.;    which  is 
created  according  to  entirely  different  principles,  and 
is  intended  to  represent,  now  the  nobility,  now  the 
aristocracy  of  intellect  or  of  wealth.     It  is  a  remnant 
of  the  former  class  system  but  a  remnant  that  is  peculiar 
in  this,  that  only  the  highest  classes  have  separate  repre- 
sentation.    In  contrast  to  the  elective  parliament    it 
is  supposed  to  embody  sometimes  historical  stability, 
sometimes  those  special  tendencies  that  are  bound  up 
with  wealth  or  with  intellect. 

7.  An  exposition  of  the  law  relating  to  parliamentary 
government  and  its  history  is  not  the  object  of  this 
work.    It  will  suffice  to  say  here,  that: 

(a)  The  parliament  belongs  to  those  institutions  by 
means  of  which  the  system  of  the  three  powers  is  to  be 
carried  out,  legislation  being  kept  distinctly  separate  from 
the  judicial  office,  and  administration  of  the  law.     It 
results  that  administration  and  justice  are  established  on 
a  firm  and  fixed  foundation,  on  the  basis  of  laws,  from 
which  there  may  be  no  departure.    (Compare  p.  229.) 

(b)  The  parliament  must  contribute  to  the  popu- 
larization of  the  government  in  the  manner  indicated 
on  page  210 :   it  will  tend  to  bridge  the  chasm  between 
the  government  and  the  governed. 

(c)  It  is  a  means  of  educating  the  political  under- 
standing of  the  people,  and  of  arousing  and  maintain- 
ing interest  in  public  affairs. 

8.  The  parliament  acquires  special  significance  when 
it  is  not  only  active  in  a  legislative  capacity,  but  inter- 


240  STATE  LAW  [CH.VIII 

venes  directly  or  indirectly  in  administration  also.  This 
is  the  case  with  the  so-called  parliamentary  system,  the 
aim  of  which  is  that  the  highest  officers,  the  ministers, 
should  be  determined  by  the  parliamentary  majority; 
so  that  the  sovereign  or  president  has  not  the  power  to 
appoint  them  according  to  his  own  choice.  This  re- 
striction is  of  such  far-reaching  importance  because 
the  position  of  the  ministers  involves  a  tremendous 
limitation  of  the  royal  power;  wherefore  it  is  particu- 
larly incisive  in  its  results,  if  the  king  or  president  can- 
not appoint  these  all-important  personages  according 
to  his  desire.  The  parliamentary  system,  therefore,  still 
further  lessens  the  authority  of  the  sovereign,  without, 
however,  reducing  it  to  a  mere  semblance;  for  it  is  still 
impossible  for  any  important  State  act  to  take  place 
without  the  king;  and  both  the  parliament  and  the 
ministers  must  come  to  an  agreement  with  the  king  if 
anything  whatever  is  to  be  accomplished.  This  is 
otherwise,  it  is  true,  in  republics,  where  the  president 
has  only  a  suspensive  veto.  Note  may  also  be  made  of 
the  king's  or  president's  power  to  dissolve  the  parlia- 
ment, which,  however,  involves  the  immediate  occurrence 
of  a  new  election.  But  these  elections  may  lead  to  a 
complete  transformation  of  the  parliament,  entailing 
quite  different  conditions  of  majority  rule,  and  hence 
also  the  appointment  of  new  ministers. 

9.  From  the  representative  system,  however,  there 
are  always  paths  leading  to  the  popular  assembly;  as, 
in  fact,  it  is  not  rare  to  find  an  inclination  toward 
earlier  forms  of  development.  The  clearest  embodi- 
ment of  this  is  the  referendum,  that  is,  the  institution 
according  to  which  resolutions  which  have  been  framed 
by  the  government  and  parliament  together,  and  which 
would  therefore  ordinarily  become  law,  must  still  be 
submitted  to  the  vote  of  the  people.  In  this  case,  the 


§25]        THE  ACTIVITY  OF  THE  STATE          241 

question  is  not  discussed  and  decided,  as  in  the  popular 
assembly,  by  the  people  in  conclave,  but  all  the  actual 
intellectual  work  and  revision  is  done  by  the  government 
and  parliament.  But  in  this  way,  the  law  can  be  put 
clearly  before  the  people,  who  can  then  discuss  it  uncer- 
emoniously, and  make  known  the  result  by  vote,  which 
can  only  be  yes  or  no.  The  referendum  is  found  in 
republican  countries,  for  instance  in  Switzerland  (also 
in  the  national  constitution)  and  in  some  of  the  states  in 
the  American  Union  (not  in  the  federal  constitution 
of  the  United  States).  Not  infrequently,  however, 
doubtful  cases  have  been  submitted  to  the  nation's  vote 
without  any  such  provision  being  found  in  the  consti- 
tution (the  plebiscite). 


SECOND  MAIN  DIVISION 
THE  ACTIVITY  OF  THE  STATE 

A.     GENERAL  REMARKS 


SECTION  XXV 

1.  The  activity  of  the  State  is  activity  for  the  wel- 
fare of  the  State,  and  the  cultural  interests  of  the  nation; 
in  fact,  for  the  cultural  interests  of  all  humanity. 

2.  The  activity  of  the  State  is  divided  into  two  very 
different  kinds  of  operations;    operations  for  the  pur- 
pose of  realizing  and  establishing  the  law,  and  other 
operations;   thus,  the  administration  of  justice  and  the 
administration  of  the  State.    The  difference  is  of  inci- 
sive importance  for  the  whole  manner  of  the  State's 
activity.     Administration  of  the  State  is  activity  within 


242  STATE  LAW  [CH.VIII 

the  limits  of  the  law;  administration  of  justice  is  activity 
in  the  service  of  the  law.  It  follows  that: 

(a)  The  administration  of  the  State  must  serve  in 
great  measure  the  commands  of  practicability  and  eco- 
nomic interests,  observing  only  those  restrictions  that 
are  imposed  by  the  legal  order:  the  law  is  the  frame 
within  which  governmental  policy  is  exerted. 

(6)  The  administration  of  justice,  on  the  other  hand, 
must  obey  solely  the  commands  of  the  law,  and  need 
only  observe  matters  of  practicability  in  as  far  as  they 
are  an  element  in  the  formation  of  the  law. 

3.  The  administration  of  the  State  is  not  within  the 
scope  of  the  philosophy  of  law,  but  belongs  only  to  the 
general  philosophy  of  culture;  hence  it  need  not  concern 
us  further  here.     The  following  only  need  be  remarked: 

(a)  It  is  not  universally  applicable  principles  that 
determine  which  spheres  the  State  will  take  into  its  own 
hands,  and  which  it  will  leave  to  other  authorities.  This 
is  governed  by  the  principles  of  historical  conditionality. 
The  State  must  intervene  wherever  it  is  to  be  assumed 
that  essential  cultural  tasks  cannot  be  adequately 
accomplished  by  the  activity  of  individuals.  As  regards 
the  realization  of  the  law,  the  State  now  controls  prac- 
tically the  whole  field.  Administrative  tasks,  however, 
are  frequently  left  to  individual  activity. 

(6)  Whether  and  to  what  extent  the  State  may  inter- 
fere with  the  activity  of  the  individual  is  also  a  matter 
of  historical  conditionality.  The  doctrine  of  the  rights 
of  mankind  is  a  doctrine  of  definite  stages  of  culture,  not 
a  doctrine  of  permanent  law. 

4.  As  regards  the  administration  of  the  State  I  would 
refer  in  addition  to  "Die  Einfiihrung  in  die  Rechtswis- 
senschaft"  (3d  edition,  p.  147  f.) 

r 


§26]  LEGAL  PROCEDURE  243 


B.    THE  ADMINISTRATION  OF  JUSTICE 


SECTION  XXVI 

I.    LEGAL  PROCEDURE 

1.     The  Legal  Procedure  of  the  Civil  Law 

(a)     Fundamental  Ideas. 

1.  The  manner  in  which  legal  procedure  grew  out 
of  peaceable  regulation  has  already  been  explained  (p. 
63).  The  realization  of  the  law  is  no  longer  the  affair 
of  the  individual,  but  solely  that  of  the  State;  and  it 
is  only  through  the  mediation  of  the  State  that  the 
individual  can  obtain  his  rights  —  his  rights  even  in 
the  face  of  others'  opposition.  The  legal  hindrances 
to  which  nature  gives  rise  do  not  belong  here;  it  is  left 
to  the  individual  to  overcome  them,  and  only  in  accor- 
dance with  the  varying  principles  of  the  police  order 
can  he  appeal  to  the  State  to  aid  him  in  this  connec- 
tion; the  opposition  of  another  person,  however,  can 
only  be  overcome  legally  with  the  help  of  the  State, 
unless  it  be  permissible  to  overcome  it  in  accordance 
with  the  principles  of  possession  or  necessary  defense 
which  were  discussed  on  page  64. 

This  realization  of  the  law  through  the  State  avoids 
all  those  imperfections  which  self-help  involves. 

(a)  The  State  can  obtain  a  correcter  perception 
of  a  right  in  question  than  can  the  individual,  who  more- 
over is  often  blinded  and  prejudiced. 

(ft)  The  State  is  always  the  stronger  when  it  is  a 
question  of  overcoming  an  individual,  and  it  is  no 
longer  a  matter  of  importance  which  of  the  two  parties 


244  STATE  LAW  [CH.VIII 

at  variance  is  mightier;  the  State  aids  the  weakest 
man  and  overcomes  the  strongest  if  the  latter  is  in  the 
wrong. 

(c)  The  State  is  free  from  blind  passions,  and  can 
devote  itself  unreservedly  to  the  aims  of  the  law;  while 
the  individual,  in  consequence  of  his  passionate  inten- 
tions, will  act  contrary  to  the  law  a  hundred  times,  the 
State,  in  every  single  case,  will  be  concerned  only  with 
the  realization  of  the  right. 

2.  This  process  of  realization,  however,  produces 
still  further  cultural  phenomena.  The  State  will  have 
to  examine  into  who  is  right;  for  it  will  not  interfere 
arbitrarily  and  blindly.  And  this  leads  to  another  im- 
portant function  which,  contrary  to  the  usual  course, 
made  itself  felt  even  before  the  State  realization  of  the 
law;  namely,  when  individuals  agreed  to  arbitration, 
and  declared  the  decision  thus  given  to  be  final. 

If  the  State  or  an  authority  in  arbitration  asserts 
that  A  is  in  the  right  and  B  is  in  the  wrong,  the  imme- 
diate consequence  will  be  that  the  realization  of  the 
law  conforms  to  this.  If  it  does  not  go  further,  an  im- 
portant evil  is  not  removed  which  gnaws  at  the  heart 
of  culture,  and  threatens  to  undermine  the  most  earnest 
economic  endeavors;  this  evil  is  the  insecurity  of  legal 
relations.  It  is  not  alone  the  incompleteness  of  the 
realization  of  the  law  that  hampers  and  hinders  man- 
kind, but  the  whole  uncertainty  of  the  condition  of  the 
law.  Whoever  desires  to  act  in  legal  commerce  must 
be  able  to  build  on  a  sure  foundation,  and  especially 
to  see  his  way  clearly  in  regard  to  matters  of  property; 
if,  in  this  connection,  difficulties  and  discord  arise,  there 
must  be  a  given  means  of  settling  them;  and  it  must 
be  such  that  it  is  known,  once  for  all,  what  the  right  is. 
The  procedure  which  in  itself  strives  to  ascertain  the 
right  and  the  wrong  will  gradually  gain  control  of  the 


§26]  LEGAL  PROCEDURE  245 

means  of  their  establishment,  in  order  to  meet  this 
need  also;  not  at  once,  for  the  law  will  long  restrict 
itself  to  the  realization  of  the  law,  and  will  use  the 
method  of  legal  examination  only  for  this  purpose.  It 
is  true,  however,  that  even  at  this  point,  it  is  frequently 
attempted  to  attain  the  further  end  indirectly.  It  is 
sought  to  bring  about  the  desired  security  by  compel- 
ling the  parties,  after  the  decision,  to  acknowledge  it 
by  an  express  legal  act,  and  to  submit  to  it  by  a  legally 
binding  Declaration;  thus  it  was  in  old  Germanic  law. 
From  here,  however,  it  is  only  a  step  to  a  further  con- 
ception :  the  State  decision  is  binding  and  determinative 
not  only  for  the  realization  of  the  law,  but  altogether;  it 
can  no  longer  be  questioned.  This  is  brought  about 
by  the  following  legal  device:  the  public  authority  of 
the  State  is  mightier  than  private  law;  the  State  can 
not  only  realize  law,  but  create  law.  If  the  State  is 
given  legislative  power,  it  must  also  be  given  the  power, 
in  individual  cases,  through  its  organs,  by  virtue  of  its 
authoritative  utterance,  to  abrogate  the  law:  the  State 
gives  to  the  judge  the  key  of  the  law;  he  can  bind  and 
dissolve  the  law. 

3.  Thereby  the  insecurity  of  the  legal  situation  is 
finally  removed,  and  it  is  now  known  what  is  right: 
for,  whether  the  decision  be  right  or  not,  yet  from  now 
on  it  is  valid.  It  is  either  right,  in  which  case  everything 
is  in  order,  or  it  is  wrong,  and  then  a  corresponding 
displacement  of  the  law  occurs.  This  may  appear  to 
be  a  defect;  for  it  is  lamentable  if,  in  consequence  of 
judicial  error,  some  one  loses  his  rights,  or  if,  for  in- 
stance, some  one  who  does  not  owe  another  anything, 
is  suddenly  made  his  debtor  to  the  extent  of  100,000 
marks  by  judicial  error;  but  for  this  single  error,  the 
valuable  asset  of  legal  security  compensates,  and  it  is 
worth  so  much  that  the  unavoidable  evils  must  be  put 


246  STATE  LAW  [CH.VIII 

up  with.    With  the  attainment  of  legal  security,  human 
culture  makes  a  considerable  stride. 

4.  The  principle  of  the  final  establishment  of  the 
law  is  indispensable,  but  it  may  exist  even  if   certain 
modifications  enter  into  it;    inasmuch  as  the  sphere 
of  these  exceptions  is  so  clearly  described  that  the  rule 
remains  unaffected.    Now  there  are  a  number  of  cases 
in  which  the  substantive  right  is  so  far  outraged  by  the 
decision  made  that  a  departure  from  the  rule  appears 
to  be  advisable.     Thus,  in  particular,  if  in  the  proce- 
dure of  decision  the  judge  has  made  grave  mistakes, 
or  if  there  were  serious  defects  in  the  trial:    especially 
if  the  decision  was  determined  by  a  crime,  false  testi- 
mony, or  perjury,  or  if  the  trial  was  incomplete  owing 
to  the  impossibility  of  obtaining  certain  evidence. 

In  this  connection,  we  speak  of  "restitution,"  and  it  has 
been  carried  out  in  various  ways  in  our  cultural  systems 
of  law.  The  consequence  is,  that  the  decision  is  over- 
thrown, and  it  becomes  possible  to  put  another  in  its 
place. 

5.  Culture  only  requires  that  a  legal  certainty  shall 
finally  arise,  not  that  it  shall  be  achieved  at  the  first 
attempt.    At  this  point  the  institution  of  the  appeal 
developed;  that  is,  the  possibility  following  the  decision 
of  one  court,  to  obtain  a  second  or  third  decision  in 
such  a  way  that  the  former  decision  is  dissolved  and 
another  takes  its  place.    The  manner  in  which  this 
institution  has  developed  varies  greatly,  and  rests  on 
multifarious  legal  historical  motives  which  must  be  else- 
where presented.     It  will  suffice  for  our  purpose  here  to 
say,  that  one  of  the  main  factors  was  chieftainry  and 
the  hierarchy  of  powers  that  it  produced.    The  chief 
desired  if  possible  to  have  the  last  word,  and  it  was 
naturally  flattering  to  his  sense  and  desire  of  power  if 
he  thus  succeeded  in  concentrating  the  administration 


526]  LEGAL   PROCEDURE  247 

of  justice.  The  legal  character  of  the  appeal,  however, 
consists  in  this,  that  the  first  decision  is  conditionally 
given,  and  the  reversal  takes  place  as  soon  as  a  higher 
instance  decides  differently. 

6.  Legal  procedure  as  a  realization  of  justice  has 
indeed  its  disadvantages  and  defects.  The  chief  dis- 
advantage is  the  unavoidable  delay  that  it  involves. 
Instead  of  a  man's  being  able  to  obtain  his  rights  imme- 
diately and  directly,  he  must  choose  the  circuitous  route 
and  apply  to  the  State;  and  the  judicial  investigation 
of  the  matter  may  take  considerable  time.  Instead  of  a 
rapid  accomplishment  of  justice,  we  have  a  slow  realiza- 
tion of  justice,  which  often  is  almost  equivalent  to  a 
denial  of  it.  What  advantages  does  the  prospect  of  a 
just  decision  and  subsequent  powerful  measures  of 
realization  offer,  if  I  must  submit  to  a  delay  of  months 
and  years,  until  perhaps  the  realization  becomes  merely 
theoretical,  and  the  defendant  has  sunk  so  low  finan- 
cially that  nothing  can  be  had  from  him? 

Our  modern  law  of  legal  procedure  is  still  fighting  against 
this  evil.  We  are  endeavoring  to  reconcile  the  appar- 
ently irreconcilable  contradiction  that,  on  the  one 
hand,  the  realization  of  justice  should  be  swift  and 
unhampered,  and,  on  the  other,  that  a  just  decision  pre- 
supposes a  thorough  examination  of  the  controversy. 

The  common  civil  procedure  did  not  solve  this  diffi- 
culty; at  least  not  in  theory.  It  simply  made  the 
realization  of  justice  dependent  on  the  establishment  of 
the  law;  so  that  it  was  necessary  first  to  establish  the 
law  before  it  was  possible  to  proceed  to  the  realization  of 
justice.  The  administration  of  justice  did  indeed  seek  to  aid 
in  many  ways,  but  without  any  thoroughgoing  principle. 
The  great  advance  in  modern  procedure  lies  in  this,  that 
the  realization  of  justice  and  the  establishment  of  the 
law  are  separated;  so  that  it  is  possible  to  proceed  to 


248  STATE  LAW  [CH.VIII 

the  realization  of  justice  before  the  determinative  estab- 
lishment of  the  law  has  taken  place.  This  is  done  by 
means  of  the  preliminary  enforcible  judgment  (vorlaufig 
vollstreckbares  Urteil),  that  is  to  say,  that  the  judg- 
ment can  be  compulsorily  realized  even  before  its  legal 
validity  is  established.  This  involves  the  disadvantage 
that  the  realization  of  justice  sometimes  goes  astray, 
and  leads  to  results  that  are  at  variance  with  true 
justice  and  with  its  certainty  for  the  future.  Momen- 
tous as  this  evil  is,  it  must  yet  be  accepted  for  the  sake 
of  the  advantage  that  is  gained  if  the  plaintiff,  on  the 
basis  of  preliminary  examinations  or  other  circumstances 
that  make  his  right  probable,  attains  his  end  speedily. 

The  difficulty  must  then  be  solved  in  this  way:  if  the 
realization  of  justice  leads  to  results  which  do  not  agree 
with  the  future  security  of  justice,  an  adjustment  must 
take  place;  whatever  the  complainant  has  wrongfully 
acquired,  he  must  restore,  and  it  may  be  that  he  will 
also  have  to  give  the  other  party  compensation. 

7.  But  even  with  this  solution  there  still  remains 
something  lacking;  for  at  least  until  a  provisional  judg- 
ment is  attained,  the  complainant's  right  is  still  unreal- 
ized. Three  methods  are  employed  to  adjust  this 
disagreement : 

(a)  The  rapid  forms  of  procedure,  arrest,  temporary 
disposition  (Verfugung). 

(b)  The  enforcible  document:    the  debtor  acknowl- 
edges his  debt  in  an  unquestionable  declaration  and  the 
creditor  is  given  the  privilege,  on  the  ground  of  the 
writing,  to  collect  the  debt — for  the  present,  with  a 
reservation  of  future  settlement. 

(c)  The  delay  in  time  is  balanced  in  the  following 
way:  the  person  against  whom  judgment  is  finally  given 
is  treated  as  if  the  judgment  had  been  pronounced  at  the 
beginning  of  the  proceeding,  and  as  if  the  object  which  he 


526]  LEGAL  PROCEDURE  249 

has  to  deliver  had  been  left  with  him  since  then  only 
as  a  loan.  If,  for  instance,  after  six  months,  the  judg- 
ment is  against  the  defendent  for  the  sum  of  1,000 
marks,  it  is  to  be  regarded  as  if  the  judgment  against 
him  had  been  given  immediately,  and  the  sum  had 
remained  as  a  loan.  He  would  not,  indeed,  have  been 
allowed  to  retain  it  without  interest;  whence  follows 
the  necessity  of  interest  during  the  procedural  period  of 
delay.  The  matter  is  treated  in  the  same  way  if,  after 
six  months,  the  defendant  is  ordered  to  deliver  up  a 
thing;  he  is  regarded  as  if  he  had  been  so  ordered  at 
the  outset,  and  he  had  been  allowed  to  retain  the  thing 
to  administer  it  for  the  complainant;  this  gives  rise  to 
the  duty  of  restoring  the  proceeds  and  the  duty  of 
handling  such  a  thing  with  care. 

It  would,  however,  be  a  false  interpretation  of  the 
idea  if  one  should  say  that  the  judge's  attitude  must  be 
as  if  he  had  given  the  judgment  at  the  very  beginning 
of  the  trial;13  according  to  this  view,  the  defendant  would 
have  to  be  ordered  to  deliver  the  thing  up  even  if  it 
had  perished  by  chance,  in  the  course  of  the  proceed- 
ing. The  correct  view  is  rather  this:  the  judge  must 
indeed  judge  according  to  the  condition  of  the  thing  at 
the  time  of  the  judgment,  but  he  must  then  so  turn  the 
matter  as  if  the  judgment  had  been  pronounced  at  the 
beginning  of  the  proceedings,  and  the  defendant  in  the 
meantime  had  been  merely  the  guardian  and  adminis- 
trator of  the  interests  at  issue. 

8.  In  this  way,  of  course,  absolute  perfection  can 
never  arise ;  but  the  policy  of  the  law,  like  every  policy, 
is  the  achievement  of  the  possible,  the  attainment  of 
what  is  attainable  under  the  incompleteness  of  human 

"This  was  the  interpretation  that  Roman  law  maintained  for  a  long 
time.  In  this  instance,  as  in  many  other  cases,  Roman  law  was  grop- 
ing in  the  direction  of  the  proper  view. 


250  STATE  LAW  [CH.VIII 

conditions,   and   of  what   best   accords  with   its   final 
aims. 

(b)     Religion  and  Reason  in  Procedure. 

1.  Peaceable  regulation  is  principally  furthered  by 
the  worship  of  the  divinity.     The  divinity  is  often  the 
goddess  of  peace;   she  resists  force  and  hates  disputes 
and   quarreling.     So   it   happens   that   the    efforts   to 
obtain  the  settlement  of  legal  claims  and  disputes  with- 
out violence  cling  about  divine  service,  and  that  the 
law  of  procedure  is  divine  and  ecclesiastical,  before  it 
becomes  secular.    The  further  exposition  of  this  belongs 
to  the  universal  history  of  the  law ;  but  here  the  part  that 
worship  played  in  the  development  of  procedure  must 
be  explained. 

2.  Already  on   the  plane  of  pure  legal  order,  the 
priesthood  attains  great  eminence;   for  even  the  law  is 
not  a  human  but  a  divine  law.  The  creation  of  the  law 
is  a  formation  of  the  conditions  as  they  conform  and  are 
agreeable  to  the  divinity;    and  the  exercise  of  the  law 
corresponds  to   the  divine  will — at  least  as  soon  as 
religion  has  advanced  to  the  point  where  many  gods  are 
merged  into  one  unified  divine  authority. 

Hence  it  is  comprehensible  that  even  at  that  time 
the  law  is  made  mainly  by  the  priests,  and  that  they 
endeavor  to  develop  the  divine  will  in  all  directions. 

3.  But   this  activity  will   become   still   more   pro- 
nounced  when   society   reaches   a   basis   of   peaceable 
adjustment,  and  when  it  is  a  question  of  opposing  the 
individual  assertion  of  the  law.     Here,  of  course,  people 
will  turn  first  to  the  priesthood  when  arbitration  courts 
are  desired;    for  they  have  the  best  knowledge  of  the 
law.     But  another  reason  is  also  combined  with  this. 
The  priesthood  represents  the  highest  power;  it  possesses 
the  authority  to  curse  and  expel  the  individual  who 


§26]  LEGAL  PROCEDURE  251 

resists.  This  is  a  power  that  exceeds  all  others,  and 
extends  into  eternity.  Thus,  of  course,  the  intervention 
of  the  priesthood  cannot  be  avoided,  when  quarrels  and 
disputes  arise,  and  it  will  fall  more  and  more  to  the  lot 
of  the  priests  to  solve  legal  questions,  whether  it  be  a 
matter  of  the  realization  of  justice  or  the  establishment 
of  the  law. 

4.  Moreover,  the  people  of  that  time  believed  in  the 
constant  activity  and  intervention  of  the  divinity  for 
the  individual;    they  assumed  that  the  divine  powers 
would  never  forsake  the  innocent;  that  they  would  not 
permit  the  wrong  to  triumph.     Such  a  man,  therefore, 
believed  that  the  question  of  right  and  wrong  was  uncon- 
ditionally   solved    with    absolute    certainty   by    divine 
intervention;    so  that  all  doubt  disappeared,  and  man 
bowed  to  the  infallible  divine  decision.     This  of  course 
strengthened  the  priestly  procedure;  for  it  was  just  the 
priesthood  that  acted  as  the  mediator  in  the  individual's 
relation  to  the  divinity,  and  appealed  to  him  to  reveal 
the  celestial  decision.     Thus  arose  what  is  called  the 
judgment  of  god  (Gottesurteil) . 

5.  The  judgment  of  god  is  not  unique.     In  other 
matters  also  the  priesthood  acted  as  the  medium  through 
which  the  divinity  spoke;    thus,  for  instance,  in  impor- 
tant State  affairs,  when  responsible  decisions  were  to 
be  made,   enlightenment  was  sought  of  the  divinity; 
and  it  was  supposed  that  the  divine  power  could  reveal 
to  men  the  future.     Thus  arises  the  augury,  that  is,  the 
totality  of  means  used  to  discover  the  mystery  of  the 
future.     It  did  not  appear  to  the  same  extent  in  all  the 
nations,  but  was  pronounced  among  the  star-interpreting 
Babylonians,   the  Etruscans,  and  consequently  among 
the  Romans;  also  among  the  Chinese. 

Just  as  the  future  was  spied  out  in  this  way,  so  too 
were  the  present  and  the  past ;  the  divinity  said  what  was 


252  STATE  LAW  [CH.VIII 

right;  it  announced  the  circumstances  that  were  deter- 
minative for  justice;  especially  who  had  committed  an 
evil  deed  and  who  was  guilty  of  some  crime  was  learned 
in  this  way. 

6.  Thus  an  abundance  of  divine  judgments  arose. 
They  were,  first,  those  that  were  closely  connected  with 
the  augury;  like  the  judgment  by  lot  or  the  seer's 
power,  the  priest  believing  that  in  some  manner  he  could 
discover  the  evil  doer.  Second,  there  were  the  divine 
judgments  connected  with  the  worship  of  the  dead;  it 
being  supposed  that  a  murdered  man  would  point  out 
his  murderer,  a  belief  which  appears  in  various  forms  in 
the  life  of  the  nations:  the  wounds  bleed  if  the  mur- 
derer comes  near,  the  bearers  of  the  body  suddenly 
become  paralyzed  at  sight  of  the  murderer,  etc.  Then 
there  were  the  divine  judgments  proper:  the  accused, 
or  sometimes  the  accuser,  or  both,  were  placed  in  rela- 
tion to  some  material  object  so  that  this  deified  object 
might  in  some  way  make  known  their  guilt  or  inno- 
cence ;  thus,  for  instance,  there  were  the  ordeals  by  fire, 
by  water,  and  many  others. 

It  is  unjust  to  suppose  that  lying  and  deception,  or 
even  mere  chance,  played  a  large  part  in  these  judg- 
ments. There  was  certainly  no  intentional  deception 
until  all  these  institutions  reached  a  state  of  decay, 
and  the  priesthood  began  a  rapid  decline.  But  even 
the  effect  of  chance  was  limited ;  for  frequently  the  ele- 
ments of  reason  were  also  involved.  The  consciousness 
of  guilt  or  innocence  was  an  important  factor  in  these 
tests;  they  assumed  more  and  more  the  character  of 
allowing  the  psychic  emotions  of  the  suspected  person  to 
appear,  when  he  was  confronted  with  the  deified  things 
of  nature.  Thus,  for  instance,  the  fact  that  the  accused 
trembled,  or  in  some  other  way  expressed  inward 
excitement,  might  be  interpreted  as  arising  from  the 


§26]  LEGAL  PROCEDURE  253 

consciousness  of  guilt.  As  regards  prophetic  vision  and 
the  belief  in  the  power  of  the  dead,  it  may  also  be  assumed 
that  the  reasonable  motives  that  led  to  the  conviction 
that  one  or  another  was  guilty,  so  overcame  the  priests 
and  the  bearers  of  the  dead  that  the  cultural  phenomena 
appeared  just  when  consideration  of  the  facts  made  one 
or  another  seem  guilty;  for  it  is  a  well-known  psychic 
experience  that  such  convictions  affect  our  imaginative 
activity  beneath  the  surface  of  our  consciousness,  and 
often  we  are  as  if  possessed  by  reasonable  ideas  that  grow 
up  in  us  more  or  less  unconsciously. 

But,  even  if  we  must  assume  that  the  element  of 
chance  was  large  — and  this  can  scarcely  be  doubted  — 
yet,  it  must  be  taken  into  consideration  that  the  sacri- 
fice of  the  individual  secured  the  peace  of  society;  for 
the  belief  in  the  correctness  of  the  divine  judgment  was 
so  great  that  even  the  innocent  man  believed  himself 
guilty,  and  thought  that  he  had  been  caused  to  murder 
by  some  evil  magic  spell,  or  had  attracted  murderous 
spirits  to  himself. 

Universal  history  often  requires  the  individual  to  be 
thus  sacrificed:  the  iron  tread  of  progress  tramples 
thousands  underfoot.  This  is  a  terrible  phenomenon 
which  we  must  moderate  and  ameliorate,  as  far  as  pos- 
sible, in  the  course  of  the  development  of  culture.  But 
here  we  must  simply  accept  the  ways  of  Divine  Provi- 
dence, in  the  consciousness  that  thus  the  progress  of 
the  world  is  accomplished;  and  we  must  realize  that 
our  modern  criminal  procedure  also  demands  thousands 
of  innocent  victims,  so  liable  to  error  are  our  methods  of 
proof  and  conviction. 

7.  Procedure  must  advance  beyond  this  stage,  and 
become  a  procedure  of  reason,  as  soon  as  humanity  ceases 
to  believe  in  the  basis  of  the  earlier  procedure;  that  is,  as 
soon  as  men  no  longer  assume  that  the  divinity  intervenes 


254  STATE  LAW  [CH.VIII 

in  the  government  of  the  world  for  every  individual,  and 
gives  him  a  good  or  bad  testimonial.  When  once  this 
belief  has  ceased,  procedure  must  be  along  entirely 
different  lines:  the  essential  thing  is,  not  that  it  should 
actually  lead  to  objectively  right  results,  but  that  society 
should  recognize  the  dominion  of  the  law  in  the  adminis- 
tration of  justice.  Hence,  as  long  as  people  believe  in  a 
divine  procedure,  it  can  be  retained ;  but  when  once  this 
belief  is  shaken,  procedure  must  be  built  up  on  another 
foundation. 

This  cannot  be  done,  however,  until  education  has 
advanced  so  far  that  it  is  possible  to  obtain  fairly  sound 
results  with  the  procedure  of  reason;  and  this  is  only 
possible  if  judges  possess  a  certain  degree  of  insight,  if 
the  impartiality  of  those  who  find  the  judgment  is  beyond 
doubt,  and  also  if  the  conditions  of  life  are  such  that  it  is 
possible,  in  the  main,  to  reach  a  reasonable  establish- 
ment of  the  necessary  facts. 

Until  man  has  reached  this  point,  the  religious  method 
of  proof  will  continue  to  live  in  certain  offshoots.  It  does 
not  die  easily,  and  can  still  be  traced  even  today  in  cer- 
tain institutions. 

8.  One  of  its  outgrowths,  for  instance,  is  the  oath, 
which  means  in  reality  that  a  man  curses  himself  in 
the  expectation  of  drawing  down  upon  himself  the  curse 
of  the  divinity  should  he  be  in  the  wrong.  This  institu- 
tion can  maintain  itself  for  a  long  time;  for  even  if  men 
no  longer  believe  that  the  curse  of  God  can  be  brought 
down  upon  us  by  the  will  and  power  of  men,  yet  the 
belief  that  it  is  possible  for  a  man,  by  appealing  to 
the  divinity,  to  place  himself  under  the  divine  power  of 
vengeance,  is  not  so  remote  even  from  the  man  of 
today.  In  addition,  compurgators  were  called;  origi- 
nally they  were  relatives;  later,  any  persons  of  untar- 
nished reputation. 


§26]  LEGAL  PROCEDURE  255 

The  institution  of  divine  judgment  had  one  very  evil 
result  —  the  torture  —  one  of  the  worst  institutions 
that  the  erring  human  mind  ever  devised.  The  original 
idea  was  that,  just  as  the  divine  judgment  leaves  the 
innocent  persons  untouched,  so  too  they  will  be  able  to 
bear  torture  without  succumbing.  But  even  after  this 
idea  had  gradually  declined,  torture  still  remained  as 
a  means  of  extorting  testimony  which  was  considered 
necessary,  whether  it  was  to  extract  a  confession,  or  a 
statement,  or  to  discover  where  a  treasure  was  buried  or 
the  identity  of  accessories  and  confederates.  Also  this 
institution,  eating  like  a  canker  into  mankind,  had  to 
be  overcome  before  modern  procedure  could  arise. 

9.  In  the  procedure  of  today,  however,  we  have  first 
of  all  the  far-reaching  division  between  civil  and  criminal 
procedure.  In  earlier  times  there  was  no  conception  of 
this  difference.  Anyone  with  a  grievance  simply  pre- 
sented himself  before  the  judge,  whether  he  demanded 
the  punishment  of  another,  desired  to  have  his  property 
returned,  or  was  anxious  in  one  way  or  another  to  have 
some  disagreement  settled.  Only  gradually,  after  the 
State  had  properly  grasped  the  criminal  idea,  was  the 
great  difference  perceived  in  the  activity  of  the  State, 
whether  it  prosecuted  an  evil  doer  in  the  name  of  society, 
or  whether  it  made  it  possible  for  the  individual  to  estab- 
lish and  realize  his  rights. 

(aa)   Courts 

1.  Courts  were  originally  either  priestly  courts,  popu- 
lar courts,  or  chieftains'  courts.  The  priestly  courts 
made  an  effort  in  favor  of  scientific  form,  and  it  is  not  by 
chance  that  the  science  of  the  law  was  first  developed 
mainly  in  religious  colleges.  Sometimes  the  chieftains' 
courts  imitated  the  priestly  courts,  and  possibly 
competed  with  them  as  regards  legal  education.  The 


256  STATE  LAW  [CH.VIII 

popular  courts,  on  the  other  hand,  always  maintained  a 
certain  degree  of  informality,  and  their  administration  of 
the  law  was  more  or  less  simple  and  na'rve,  proceeding 
from  the  midst  of  the  population  that  practised  the  law, 
without  careful  working  out,  and  more  unconsciously 
than  on  the  basis  of  principle.  Neverthless,  such  courts 
sometimes  rose  to  considerable  eminence  under  the 
influence  of  certain  unusually  learned  persons :  take,  for 
instance,  the  office  of  "law-man"  in  the  Scandinavian  law. 
Sometimes,  too,  the  popular  court  developed  into  a  court 
composed  of  persons  from  among  the  people  who  were 
considered  to  have  special  knowledge  of  the  laws;  and 
thus  the  popular  court  became  an  assessors'  court 
(Schoffengerickf). 

2.  With  the  growth  of  the  priestly  and  chieftains' 
courts,  in  contrast  to  the  popular  courts,  a  law  as  under- 
stood by  jurists  (Juristenrechf)  was  developed  as  against 
the  popular  law  (Volksrecht) .     Both  belonged    to  cus- 
tomary   law   (Gewohnheitsrecht) ,  but    the    juristic    law 
grasped  the  matter  with  a  logically  trained  understand- 
ing, the  popular  law  with  an  instinctive  general  view  of 
life  (Weltanschauung). 

3.  As  the  development  of  the  law  is  partly  teleo- 
logical,  partly  logical,  no  one  kind  of  court  will  be  the 
only  right  one;  the  proper  court  can  only  be  formed  by  a 
combination  of  the  popular  court  and  the  technical 
court.     Both   can   contribute   to   the   advance   of   the 
administration  of  justice.     Technical  law    has  an  easily 
understood  tendency  toward  exaggerated  logic,  unwhole- 
some elaboration,  sophistry,  and  quibbling.      Popular 
law,  on  the  contrary,  is  inclined  to  lose  its  balance,  and 
to  be  so  dominated  by  practical  considerations  that 
it  goes  to  pieces.     It  is  also  in  danger  of  losing  itself  in 
circumstantials,  and  since  in  it  a  firm  core  is  lacking, 
to  become  the  shuttlecock  of  momentary  moods  and 
passions. 


§26]  LEGAL  PROCEDURE  257 

4.  We  are  right  today  in  aiming  at  the  establish- 
ment of  both  technical  and  popular  courts,  and  in  our 
endeavors  to  bring  before  the  popular  courts  especially 
the  disputes  of  the  classes  among  themselves,  and  thus 
to  reconcile  class  contradictions.  Matters  in  which 
logical  training  is  of  more  importance  than  the  view  of 
life  are  suited  to  the  technical  courts  and  to  these  only. 

(c)     The  Philosophy  of  Legal  Procedure. 

1.  The  philosophy  of  civil  procedure  must  bear  in 
mind  that  the  latter  is  a  process  for  ascertaining  the 
truth  and  realizing  the  law.     Hence  it  must  command 
all  the  means  that  serve  to  ascertain  the  truth;    this 
procedure,  to  be  sure,  is  only  supposed  to  realize  the 
right  that  the  complainant  wishes  to  have  realized,  and 
it  is  also  true   that  the  defendant  may  give  in,  and 
acknowledge  a  non-existent  right.     But  this  does  not 
mean  that  in  respect  to  the  inquiry  made  by  the  judge, 
the  parties  have  a  right  of  disposition  in  the  case ;  it  only 
means  that  the  judge  is  bound  by  the  limits  of  that  par- 
ticular right,  the  realization  of  which  the  complainant 
desires;    and  further  that  the  legally  determinative  dis- 
position of  the  defendant  may  create  a  new  legal  basis 
between  the  parties,  so  that  there  need  be  no  further  dis- 
pute about  the  old  right.     On  the  other  hand,  within 
these  limits,  the  judge  must  ascertain  the  full  truth,  and 
any    impairment   of    his  free  examination    is  entirely 
inadmissible,  and  also  unworthy  of  the  judicial  office. 

2.  If,  notwithstanding,  the  judge,  in  certain  respects, 
is  dependent  on  the  parties,  this  is  the  consequence  of 
human  conditions,  and  as  such  must  be  borne,  but  not 
extended  beyond  what  is  immediately  necessary.   Thus, 
it  is  particularly  fitting  if,  at  least  in  matters  relating  to 
property,  the  judge  follows  the  corroborative  declara- 
tion of  the  parties  about  facts.    This  and  other  trial 


258  STATE   LAW  [Cn.  VIII 

maxims  (Verhandlungsmaxime) ,  so  called  since  the  time 
of  the  exponents  of  Natural  Law u  in  the  nineteenth 
century,  relate  to  the  principle  of  usefulness,  and  are 
connected  with  the  fact  that  in  civil  matters  there  is 
little  possibility  of  the  judge  getting  beyond  the  parties 
to  the  truth;  although  it  must  always  be  allowable  for 
the  judge  to  call  and  examine  witnesses  regardless  of 
the  parties. 

3.  The  philosophy  of  legal  procedure  also  involves 
the  following:  everyone  must  be  given  the  opportunity, 
though  with  reservations  and  under  regulations,  of 
appealing  to  the  judge,  thus  producing  the  legal  relation 
calling  for  procedure.  This  may  lead  to  abuses  which, 
if  they  become  frequent,  may  be  corrected  by  the  rules 
of  procedure  in  one  manner  or  another.  But,  in  gen- 
eral, it  is  not  possible  to  dispense  with  the  rule  that 
anyone  is  competent  to  bring  an  action,  and,  especially, 
the  assumption  is  entirely  inadmissible  that  a  man 
who  is  in  the  right  occupies  a  different  procedural  posi- 
tion from  one  who  is  in  the  wrong;  being  right  or  wrong 
can  only  influence  the  content  of  the  judicial  judgment, 
but  cannot  alter  the  person's  position  as  to  his  proce- 
dural rights.  All  logical  wranglings  that  have  been 
indulged  in  regard  to  this  matter  must  be  rejected. 
Procedure  is  an  institution  for  the  purpose  of  realizing 
the  law;  and  this  institution  must  operate  with  certain 
means;  and  one  of  these  is  the  principle  that,  apart  from 
any  consideration  of  right  or  wrong,  everyone  can 
obtain  a  hearing  before  the  judge,  and  can  bring  an 
action.  A  metaphysic  of  procedure  that  assumes  that 
the  entitled  subject  has  a  so-called  claim  to  legal  pro- 
tection is  wrong  from  the  beginning.  The  correct 
fundamental  idea  is  rather  that  of  the  separation  of 
civil  procedure  (Zivilprozess)  from  civil  law  (Zivilrecht). 

><  "Arch.  f.  Rechtsphilos."  I,  p.  503  f. 


§26]  LEGAL  PROCEDURE  259 

The  realization  and  the  establishment  of  the  civil  law 
is  the  end  at  which  the  State  aims,  when  it  accords  the 
right  of  procedure  to  an  unentitled  as  well  as  to  an 
entitled  subject. 

4.  If  we  go  a  step  farther,  in  order  to  characterize 
the  right  of  every  individual  to  bring  an  action,  we 
must  say  that  it  belongs  to  the  class  of  rights  in  one's 
own  person  (Personlichkeitsrecht) ;  it  is  the  personality 
that  asserts  himself  in  the  action. 

As  regards  execution  (Vollstreckung) ,  a  particular 
factor  applies,  in  that  not  everyone  by  merely  bringing 
an  action  can  resort  to  execution;  but  only  one  who  has 
a  so-called  title  of  execution  (Vollstreckungstitel)  (a 
judgment  and  such  like). 

5.  This    personal    right   (Persdnlichkeitsrechf)    gives 
rise,  by  reason  of  a  definite  procedural  assertion  of  the 
complainant,  to  a  legal  relation  between  the  complainant 
and  the  defendant,  the  legal  relation  of  civil  procedure. 

This  has  frequently  been  misunderstood,  and  wrong 
ideas  have  been  accepted  which  has  made  the  matter 
somewhat  obscure. 

It  has  been  said  that  every  person  has  a  claim  against 
the  State  to  be  heard  by  the  State  in  his  procedural 
assertions,  and  to  bring  an  action  against  anyone.  This 
rests  on  an  entire  misunderstanding  of  the  nature  of  a 
claim  (discussed  on  page  84).  Not  everything  that  I 
may  do,  can  be  included  in  the  idea  of  a  claim;  not 
even  if  thereby  I  am  protected  from  the  interference  of 
others.  It  is  a  claim  only  if  a  special  relation  exists  on 
the  basis  of  which  a  certain  activity  can  be  demanded. 
But,  if  it  is  a  question  of  a  general  right  which  must  be 
respected  by  everybody,  especially  by  the  State,  the 
idea  of  a  claim  is  entirely  unsuitable;  for  the  necessity 
that  the  person  of  the  complainant  should  be  recognized 
through  the  judge  rests  on  the  right  of  personality; 


260  STATE   LAW  [CH.VIII 

just  as  the  necessity  that  property  should  be  recognized 
rests  on  the  nature  of  ownership. 

6.  As  regards  the  form  of  procedure,  it  aims  mainly 
at  being  practical.  Yet  here,  too,  it  is  possible  to  explain 
certain  fundamental  ideas  which  recur  in  the  legal  systems 
of  our  people. 

(a)  There  is  a  question  whether  procedure  is  to  be 
treated  as  divisable,  or  as  a  unity:  the  former  in  this 
way,  that  the  procedure  ceases  with  the  term  and  must 
be  recalled  to  life  by  a  new  act,  until  finally  the  object 
is  attained.  Thus,  the  progress  of  the  case  is  from 
judgment  to  judgment,  and  through  a  series  of  judgments 
—  the  procedure  being  constantly  closed  and  reopened. 

In  contrast  to  this,  there  is  the  notion  of  procedural 
unity;  so  that  the  different  terms  are  only  parts  of  one 
great  whole.  The  result  is  that  a  final  judgment  is  not 
given  till  the  end ;  orders  being  entered  in  the  meantime, 
which  generally  can  be  changed  by  the  courts ;  and  that 
judgments  before  the  close  of  the  procedure  (Zwischenur- 
teile)  exist  only  as  exceptions,  where  questions  are 
involved,  whose  ultimate  settlement  is  of  urgent  interest 
to  both  parties. 

Modern  law  tends  towards  the  second  view,  and  that 
is  the  one  accepted  by  German  legislation.  It  has  the 
advantage,  that  in  all  inquiries  into  the  case,  the  latest 
developments  are  at  the  judge's  command,  and  he  is 
thus  able  from  examination  to  examination  to  get  nearer 
to  the  truth;  whereas,  otherwise,  he  is  bound  by  earlier 
judgments  and  cannot  make  use  of  better  knowledge. 
In  another  respect,  also,  this  method  is  to  be  preferred, 
for  by  it  the  examination  is  better  apprehended,  and 
by  unification  a  better  result  is  made  possible. 

(&)  Adversarial  procedure  and  inquisitorial  proce- 
dure (Partei-  und  Untersuchungs-prozess)  are  two  further 
poles  in  the  treatment  of  this  subject.  Adversarial  (or 


526]  LEGAL  PROCEDURE  261 

party)  procedure  is  an  intellectual  conflict  of  two  oppos- 
ing persons,  and  in  their  contest  they  bring  forward 
their  reasons  and  resources.  In  inquisitorial  procedure, 
the  judge  alone  is  the  determinative  agency,  and  the 
others  involved  are  solely  participants  who  can  take  part 
in  one  way  or  another,  but  cannot  oppose  one  another  nor 
control  the  course  of  the  procedure.  Each  system  has 
its  advantages.  In  civil  procedure,  party-process  is  gen- 
erally to  be  preferred;  because  everything  bearing  on 
the  matter  is  best  brought  to  the  surface,  just  by  the 
conflict  between  two  persons  with  opposing  interests. 
This  involves,  however,  the  considerable  inconvenience, 
that  a  decision  is  brought  about  only  between  two  per- 
sons, wherefore,  when  a  number  of  persons  are  affected, 
inquisitorial  procedure  proves  to  be  especially  practical. 
A  combination  of  the  two  methods  is  seen  in  the  party 
process  with  a  number  of  persons  on  one  side,  where  each 
may  take  part  in  the  proceedings. 

Our  civil  procedure  is  generally  party  procedure;  yet 
occasional  cases  are  not  lacking  in  which  inquisitorial 
procedure  is  used. 

(c)  The  form  of  the  civil  procedure  may  be  governed 
by  the  principle  that  a  decision  can  only  follow  when 
both  sides  participate.  This  rests  on  the  principle  of 
combat,  which  requires  two  combatants ;  for  even  if  the 
defendant  surrenders  at  once,  he  must  yet  be  present 
in  order  to  say  so.  Many  systems  of  law  start  from  this 
point  of  view,  at  the  same  time  regarding  it  as  the 
sacred  duty  of  the  citizen  to  take  part  in  the  process, 
and  not  to  absent  himself.  This  is  connected  with  the 
whole  system  of  popular  assembly,  where  it  is  customary 
in  the  development  of  the  relations  of  society  to  meet 
in  certain  public  unions  (as  is  still  the  case  in  the  African 
palaver,  etc.,  and  as  formerly,  in  the  German  national 
ibly).  There,  both  complainant  and  defendant  are 


262  STATE   LAW  [CH.VIII 

present;  and  it  follows,  as  a  matter  of  course,  that 
everyone  who  is  called  in  this  way  must  take  part  in  the 
procedure,  if  he  wishes  to  be  considered  a  legal  member 
of  the  national  community.  Whoever  does  not  do  so  is 
expelled  from  the  community  altogether. 

This  principle  is  later  replaced  by  another:  the 
process  does,  indeed,  remain  a  conflict;  but  just  as  the 
defendant  may  capitulate,  so  too  he  may  remain  away 
and  his  absence  is  considered  equivalent  to  a  declara- 
tion that  he  is  defeated  and  that  he  concurs  in  his  defeat. 
According  to  a  third  system,  if  the  defendant  does  not 
appear  he  neither  capitulates  nor  declares  himself 
defeated,  but  he  does  not  meet  the  attack  of  the  com- 
plainant with  a  counter-attack. 

The  latter  is  the  method  represented  in  most  modern 
cultural  systems  of  law.  In  this  way,  justice  is  best 
done  to  the  complainant  without  declaring  that  the 
defendant's  absence  is  a  complete  acknowledgment, 
which  often  does  not  agree  with  the  facts.  On  the  other 
hand,  it  is  comprehensible  that  in  such  a  case  the 
defendant's  failure  to  appear  should  be  construed,  as 
far  as  possible,  in  favor  of  the  complainant.  Never- 
theless, it  is  going  too  far  if  in  all  cases  the  facts  of  the 
complaint  are  regarded  as  acknowledged,  as  in  German 
civil  procedure. 

For  the  rest,  the  procedure  pertaining  to  default 
(Vefsaumungsverfahren)  does  not  belong  to  the  gen- 
eral philosophy  of  law,  but  to  the  special  legal  policy 
of  the  time  and  the  nation ;  hence  it  need  not  be  further 
discussed  here. 

(d)     Proof  Founded  on  Reason. 

1.  If  proof  founded  on  reason  (Vernunftbeweis)  is 
accepted,  care  must  be  taken  that  means  of  proof  be  not 
lacking.  A  great  discovery  which  considerably  advanced 


§26]  LEGAL  PROCEDURE  263 

procedure  is  the  document  ( Urkunde),  that  is,  the 
means  of  putting  a  declaration  of  thoughts  or  will  in  an 
unchangeable  form,  to  petrify  them  so  that  they  are 
secured  for  all  ages.  The  document  developed  with  the 
art  of  writing,  as  a  support  for  the  memory,  as  a  means 
of  intercourse  between  those  who  cannot  associate  with 
one  another  personally,  and  finally  as  a  means  of  estab- 
lishing what  has  once  been  said,  for  future  evidence. 
The  document,  it  is  true,  is  therefore  only  essential  for 
legal  dealing  which  is  carried  on  principally  according 
to  the  intention  of  men,  not  for  illegal  commerce;  as 
whoever  is  engaged  in  illegalities  is,  on  the  contrary, 
anxious  to  obliterate  the  traces  of  his  deeds.  In  this 
case,  other  expedients  must  be  sought.  Human  activity 
is  here  replaced  by  nature,  which  can  only  be  partly 
mastered  by  man.  The  farther  we  penetrate  in  the 
knowledge  of  nature,  the  less  will  the  culprit  be  able  to 
escape  our  investigations ;  for  a  number  of  natural  events 
will  arise  from  the  deed  which  the  perpetrator  cannot 
avoid,  and  which  finally  betray  him.  In  this  respect 
the  inquiring  mind  will  find  ever  new  forces  at  its 
disposal.  (Compare  p.  292.) 

2.  Another  aid  is  testimony,  which  is  important  for 
illegal  as  well  as  for  legal  acts,  because  in  both  cases, 
things  are  perceived  which  serve  to  retain  past  events. 
In  legal  dealing  testimony  comes  under  consideration 
in  a  special  way.  Just  as  the  document  can  be  used  as 
a  means  of  establishment  of  facts,  so  too  can  testimony 
be  used,  witnesses  of  a  transaction  being  called  for  this 
purpose.  This  calling  of  witnesses  has  a  wide  historical 
background  which  must  be  dealt  with  in  the  universal 
history  of  law. 

It  is  of  the  greatest  importance  that  the  persons  so 
called  should  possess  the  ability  to  perceive  to  the  full 
extent,  that  they  should  be  able  to  retain  what  they 


264  STATE  LAW  [CH.VIII 

have  perceived,  and  that  they  should  be  desirous  of 
recounting  it  correctly. 

3.  In  all  these  directions  the  means  of  proof  must  not 
be  overestimated;  and,  in  particular,  it  leads  to  com- 
plete injustice  if  the  psychology  of  testimony  is  not 
grasped ;  and  if  it  is  not  recognized  that  perceptions  often 
produce  false  impressions,  so  that  what  is  entirely  incor- 
rect is  not  rarely  conscientiously  asserted  and  even 
sworn  to.  In  this  respect,  tremendous  errors  have  been 
made,  and  the  injustice  that  they  have  wrought  is  no 
slighter  than  the  injustice  of  the  time  when  the  ordeal 
was  depended  upon.  Just  as  in  earlier  periods  people 
finally  became  free  from  their  belief  in  the  efficacy  of 
an  appeal  to  heaven,  in  their  effort  to  advance  toward 
truth  and  reason,  so  today  we  must  be  on  our  guard 
against  blind  confidence  in  testimony  and,  by  carefully 
and  psychologically  examining  it,  seek  to  get  at  the 
truth.  Testimony  is  merely  the  raw  material  out  of 
which  the  judge  must  construct  the  truth. 

On  the  other  hand,  testimony  has  this  advantage  over 
inanimate  means  of  proof,  that  witnesses  can  be  interro- 
gated and  urged  to  explain  doubtful  points  in  their 
testimony.  Hence,  it  is  of  particular  importance  that 
the  parties  concerned  should  be  present,  and  should  be 
permitted  to  question  the  witnesses. 

(e)     Execution  and  Bankruptcy. 

1.  The  realization  of  justice  also  seeks  to  bring  about 
the  result  that  the  law  desires  without  any  effort  on  the 
part  of  the  defendant.  It  is  best  arranged  if  it  — 

(a)  operates  firmly  and  surely; 

(b)  is  able  to  realize  the  rights  of  the  complainant  in 
all  its  particulars; 

(c)  is  at  the  same  time  humane,  and  does  not  sacri- 
fice the  man  to  the  law. 


526]  LEGAL  PROCEDURE  265 

2.  There  are  cases  in  which  the  participation  of  the 
defendant  cannot  be  dispensed  with;    the  law  is  then 
obliged  to  act  upon  his  will. 

3.  Whether  the  execution  affects  only  property  or 
also  the  person  varies  in  history.     With  us  the  former 
is  the  case,  but  for  centuries  the  latter  was  usual  and 
predominant. 

4.  The    method    of    converting    the    property    into 
money  (with  the  aid  of  the  judicial  pledge  right)  belongs 
to  the  technic  of  the  law. 

5.  Bankruptcy    is    an    institution    of    settlement, 
whereby  the  harshness  of  chance  is  modified,  and  by 
means  of  which  it  is  intended  to  bring  about  the  result, 
that  interests  which  are  equal  in  the  law  shall  receive 
as  far  as  possible  equal  attention  and  development.  Two 
points  of  view  in  particular  come  under  consideration. 
The   plurality   of    creditors   who   proceed    against   the 
debtor  would  otherwise  have  to  depend  on  a  single  exe- 
cution (Einzelvollstreckung).      This    single   execution   is 
thoroughly  justified  if  there  is  enough  property  to  allow 
of  every  creditor's  gaining  full  satisfaction;    hence  it  is 
also  thoroughly  justifiable  if,  in  this  matter,  German  pro- 
cedure starts   from  the  system  of  pledge  rights,  and 
gives  the  first  pledgee  the  preference  before  his  suc- 
cessors:   then  a  creditor  can  fall  upon  one  or  another 
piece  of  the  debtor's  property  in  order  to  gain  his  satis- 
faction from  it.     But  if  the  debtor's  financial  condition 
is  so  bad  that  not  all  the  creditors  can  be  fully  satisfied, 
then  this  system  leads  to  the  evil  result  that  one  creditor 
will   be    completely  covered,  and    another    will  obtain 
nothing;   and,  further,  that  in  this  respect,  it  is  solely 
chance  that  decides,  and  whoever  comes  first  claims  the 
property.     There  may  be  a  certain  justification  for  this, 
inasmuch  as  in  all  systems  of  law  diligence  in  following 
up  a  claim  plays  a  part.     But  it  is  not  just  that  this 
circumstance  should  have  so  great  an  effect;    for  such 


266  STATE  LAW  [CH.VIII 

diligence  is  often  synonymous  with  ruthlessness  and 
harshness,  and  it  certainly  cannot  be  required  of  every- 
one that  he  be  a  shrewd  business  man. 

6.  Hence,  in  such  cases,  it  is  justifiable  that  the 
preference  should  not  be  given  to  the  first  comer;   but 
that  the  system  of  equality  should  decide  that  all  the 
creditors  should  stand  equal,  should  be  subject  to  the 
same  advantages  and  disadvantages,  and  that  if  there 
is  a  loss,  it  should  be  borne  by  all  alike ;  in  other  words, 
that  not  the  principle  of  the  pledge  right  but  that  of 
sequestration  (Beschlagsrechtsprinzip)  should  apply. 

This  principle  is  the  fundamental  basis  of  bankruptcy 
and  the  one  to  which  this  institution  chiefly  owes  its 
origin. 

7.  A  second  point  of  view  is  the  following.     The 
objects  that  constitute  the  property  usually  stand  in 
such  close  relation  to  one  another  that  if  they  are  sepa- 
rated and  isolated  considerable  loss  is  entailed;  for  the 
advantage  that  lies  in  this  close  cohesion  of  all  the 
proprietary  objects  ceases.     It  is  therefore  advisable  to 
proceed  as  follows:  if  the  whole  property  of  the  debtor 
is  intended  to  serve  the  creditors,  an  organization  is 
formed  to  turn  the  property  to  account,  and  reduce  it  to 
money;   and  thus,  partly  by  administration,  partly  by 
the  sale  of  the  whole  or  portions,  the  advantage  of  cohe- 
sion is  preserved.     In  this  way,  greater  losses  are  avoided 
than  the  circumstances  of  the  case  require. 

8.  This  leads  of  course  to  a  co-operative  form  of  the 
relation  among  the  creditors;    for  such  an  administra- 
tion  of  property  and   realization   presupposes   unified 
decision  and  action,  and  this  result  can  only  be  attained 
by  a  formal  organization  of  the  individual  creditors. 
This  is  the  second  aspect  of  insolvency.     Instead  of 
co-operative  development,  there  is  still  another  possi- 
bility —  State  attachment  (Beschlag)  and  State  admin- 


§26]  LEGAL  PROCEDURE  267 

istration  and  realization;  so  that  the  creditors  appear 
only  as  applicants  and  the  whole  management  is  carried 
out  by  the  State  itself.  This  form  of  bankruptcy  is  also 
represented  in  the  legal  systems  of  the  nations.  It  is 
not,  of  course,  impossible  and  may  also  accomplish  the 
desired  ends,  but  the  former  method  is  to  be  preferred, 
because  the  creditors  will  act  with  greater  expert  knowl- 
edge and  better  understanding  of  business  life.  It  is 
always  more  advantageous  if  those  who  are  themselves 
concerned  take  the  matter  into  their  hands,  so  that  the 
activity  of  the  State  is  limited  merely  to  the  super- 
vision that  is  necessary  to  prevent  the  interests  of  third 
persons  from  being  neglected. 

9.  Accordingly,  bankruptcy  is  no  longer  State  execu- 
tion, but  a  kind  of  regulated  self-help  that  takes  place 
under  so  many  precautionary  measures  that  it  causes 
no  uneasiness. 

2.     Administrative  Jurisdiction 

1 .  Also  the  question  whether  the  State  or  some  organ 
subject  to  the  State  has  overstepped  the  bounds  of  the 
law  in  its  administrative  activity  can  be  decided  by 
legal   procedure.     For  this  purpose,   there  are  special 
administrative  courts,  the  activity  of  which  differs  in 
some  particulars  from  that  of  the  civil  courts. 

2.  Also  the  State's  failure  to  act  may  come  before 
the  administrative  court  if  action  would  have  been  a 
duty. 

3.  The  details  of  this  subject  belong  to  legal  technic. 
(Compare  "Einfiihrung  in  die  Rechtswissenschaft,"  (3d 
ed.),  P-  194.) 


268  STATE  LAW  [ CH.VIII 

SECTION  XXVII 
II.    CRIMINAL  LAW 

1.     Criminal  Law  in  the  Proper  Sense 

(a)     Kin- Revenge  (Blutrache). 

1.  Punishment  is  expiation,  satisfaction,  retaliation. 
If  a  man  does  wrong  to  another,  he  does  it  from  an 
exaggeration  of  his  own  personality,  and  this  aggressive- 
ness must  be  restrained  and  the  man  made  to  realize 
that  his  desires  do  not  rule  the  world,  but  rather  that 
the    interests    of    the    community    are    determinative. 
Hence,  the  nature  of  punishment  is  influence  brought  to 
bear  on  the  individual,  in  order  to  bring  to  his  con- 
sciousness the  conditionality  of  his  existence,  and  to 
keep  it  within  its  limits. 

This  is  done  by  the  infliction  of  suffering,  for  suffer- 
ing has  the  following  effect:  it  cures  the  individual  of 
his  individualistic  excess;  and,  on  the  other  side,  it 
makes  it  impossible  for  him  to  continue  in  such  an 
excess  to  the  injury  of  others. 

2.  There  are  ages  in  which  this  element  of  punish- 
ment alone  appears,  or  at  least  plays  a  principal  part; 
thus  it  is  in  periods  when  kin-revenge  is  practised.     The 
individual  is  killed,  maimed,  or  otherwise  forced  back 
into  his  bounds,  because  he  has  trespassed  on  the  domains 
of  the  law.     The  wrong  that  is  thus  expiated  is  especially 
the  wrong  that  individuals  have  suffered ;  it  is  the  injured 
individual,  his  family,  his  clan,   that  consider   them- 
selves wronged.     Injury  is  weighed  against  injury,  and 
it  is  said:    because  the  injured   family  has  suffered, 
therefore  the  person  who  inflicted  the  injury  and  his 
family  must  suffer. 


§27]  CRIMINAL  LAW  269 

3.  This  one-sided  view  of  criminal  justice  later  makes 
way  for  its  consideration  in   the  social   aspect.     The 
perpetrator  is  not  punished  because  he  has  done  wrong 
to  an  individual,  but  because  he  has  injured  society  as  a 
whole,  and  has  sown  the  seed  of  evil  deeds  in  the  com- 
munity.    Not  only  the  immediate  consequence  of  the 
deed   enters  into  consideration,   but  the  whole  moral 
injury  that  human  society  has  suffered:  the  bad  example 
that  corrupts  others,  the  indignation  felt  that  the  evil 
should  triumph  over  and  oppress  the  good,  the  great 
insecurity  of  the  conditions  that  tjbtus  arise  —  all  these 
emanate  originally  from  one  thought  that  the  evil  deed 
brings  about,  or  at  least  may  bring  about  a  lower  state 
of  general  moral  life.     Hence,  if  in  such  a  case  the 
deed  is  to  be  expiated,  and  the  criminal  punished,  the 
aim  is  not  only  to  restrain  and  paralyze  his  egoism,  but 
also  to  reawaken  to  complete  purity  the  moral  feeling 
that  has  suffered  injury;  and  this  is  done  by  the  suffering 
inflicted  on  the  criminal;   partly  because  his  egoism  is 
thus  restrained,  and  that  he  may  be  made  to  feel  the 
supremacy  of  society;  and  partly  because  just  suffering 
has  a  conciliating  power,  and  that  it  is  assumed  of  a 
man  who  thus  suffers  that  he  will  regain  his  position  in 
society,  and  no  longer '  remain  in  the  same  state  of 
depravity  as  formerly.15 

4.  The  system  of  kin-revenge  has  great  defects: 

(a)  It  is  a  disrupting  element  in  national  life.  The 
discord  between  families  that  are  at  enmity  continually 
stirs  up  and  weakens  the  State,  and  great  endeavors 
must  give  way  to  individual  revenge. 

(6)  A  feeling  of  vast  insecurity  must  take  possession 
of  the  people,  and  cannot  fail  to  hinder  to  a  great  extent 
the  work  of  culture.  A  tremendous  amount  of  human 

"Compare  my  treatise,  "Wesen  der  Strafe,"  1888.  Compare  also 
Ber.olzheimer ,  "Rechts-  und  Wirtschaftsphilosophie,"  V,  p.  3  ff. 


270  STATE  LAW  [Cn.  VIII 

force  is  absorbed  by  the  constant  questions  and  problems 
of  revenge;  and  the  fear  and  terror  that  seizes  upon  the 
population  must  paralyze  steady  activity. 

(c)  One  of  its  worst  evils  is  that  kin-revenge  is  not 
limited  to  the  actual  criminal;  and,  further,  that  one 
such  act  of  revenge  immediately  begets  a  similar  act,  so 
that  an  endless  chain  of  victims  follows. 

5.  On    the    other    hand,    this    institution    has    its 
ennobling  sides.     Self-esteem  is  increased ;  personality  is 
raised  above  the  swamp  of  material   ambitions,   and 
inspired  with  courage;    and,  giving  up  everything  for 
an  idea,  the  individual  devotes  himself  to  aims  that 
are  outside  the    common    impulses    of    life.     This   is 
why   attempts  to  abolish  kin-revenge  met  with  such 
resistance,    necessitating  a   disguised    and    roundabout 
method    of    attack    before    the    institution    could    be 
rooted  out. 

6.  Periods  of  blood-revenge  are  so  much  the  worse, 
because  this  revenge  is  carried  out  even  when  the  mem- 
ber of  the  family  has  not  in  fact  been  killed.     The 
idea  is  quite  general,  in  such  times,  that  death  may  be 
caused  by  a  magic  spell ;  and  if  a  man  dies  unaccountably, 
efforts  are  at  once  made  to  find  out  from  whom  the  evil 
influence    came.     Herein    lies    the    fearfulness    of    this 
institution,  in  that  it  contains  far  too  few  rational  ele- 
ments, and  rests  rather  on  uncertain  belief,  blind  pas- 
sion, and  fervent  worship  of  the  dead,  a  mixture  that 
works  much  evil  on  humanity.     Moreover,  the  belief  in 
magic  is  not  merely  a  matter  of  imagination;   one  who 
believes  himself  to  have  been  bewitched  is  so  firmly 
convinced  of  the  fact  that  it  acts  as  an  auto-suggestion 
and  he  dies. 

The  effect  of  this  superstition  is  barely  counteracted 
by  the  belief  that  not  only  men,  but  also  demons,  may 
bring  about  death;  so  that  the  fear  and  hatred  that 


§27]  CRIMINAL  LAW  271 

would  otherwise  have  been  directed  at  persons  was  thus 
transferred  to  these  imaginary  beings.  This  was  one 
of  the  most  successful  influences  of  the  belief  in  demons, 
which  thus  greatly  reduced  the  suffering  of  nations. 

Then  the  idea  made  its  appearance  that  by  counter 
magic  the  power  of  the  evil  elements  could  be  turned 
aside;  and  the  magicians  were  appealed  to,  who,  gifted 
with  supernatural  powers,  seemed  to  be  able  to  protect 
the  unhappy  victims.  And  so  the  magician  became  the 
comforter  of  the  man  who  believed  himself  to  be 
bewitched. 

All  these  circumstances  combined  to  moderate  kin- 
revenge,  and  to  gain  a  greater  influence  for  priestly  law; 
they  were  promotive  of  culture,  and  therefore  to  be 
valued. 

7.  But  the  idea  that  was  most  destructive  in  its 
effect  on  kin-revenge  was  that  one  might  allow  his 
revenge  to  be  purchased,  a  materialistic  idea  in  itself, 
but  one  with  an  ideal  background.  Not  the  gain  of  the 
family  whose  blood  has  been  shed  was  considered  the 
main  thing,  but  the  frightful  bleeding  of  the  perpetra- 
tor's family;  and  it  was  this  that  struck  much  deeper 
into  national  life  than  the  death  of  a  single  member  of  a 
family.  A  man  allowed  himself  to  be  appeased  by 
weregild,  not  because  he  and  his  family  desired  money 
and  possessions,  but  because  they  thus  took  from  the 
family  of  the  criminal  what  it  held  dearest,  the  property 
that  it  had  acquired  with  much  labor. 

This  does  not  mean  that  the  idea  of  material  gain  was 
always  remote.  It  was  merely  not  the  first  motive. 
Once  the  practice  had  become  rooted  in  national  life,  it 
was  of  course  only  one  step  further  to  the  reign  of 
avaricious  instincts.  Gradually  and  silently,  this  came 
to  be  the  case,  until  finally  people  were  perfectly  con- 
scious of  it,  and  were  no  longer  ashamed  of  it,  since  it 


272  STATE  LAW  [CH.VIII 

had  come  down  to  them  with  the  traditions  of  their 
forefathers.  So  it  came  that  from  case  to  case  there 
was  bargaining  about  the  value  of  the  dead  person,  with 
the  idea  of  revenge  still  as  a  motive  in  the  background. 
At  first  it  rested  with  the  family  to  accept  the  weregild 
or  not;  and  they  were  able  to  demand  as  high  a  sum  as 
they  felt  their  threat  to  resort  to  bloodshed  would  com- 
pel the  other  family  to  pay. 

8.  Gradually,  however,  a  definite  amount  came  to  be 
customary.     By   degrees  everything  grew  to   be  more 
or  less  regulated  by  custom;    and  in  this  practice,  too, 
the  idea  that  one  must  do  what  was  usual  could  not  be 
rejected.     Finally,  therefore,  the  family  was  regarded 
as  bound  to  accept  the  weregild,  in  certain  cases  at  least. 
In  this  way  the  acquisitive  instinct  dulled  the  desire  for 
revenge  and  cruelty,    and  thus  it  became  a  means  of 
furthering  human  culture;    for  the  transition  to  State 
criminal    law  occurs  more  easily  after    kin-revenge  is 
pacified.     Finally  the  State  itself  can  take  over  the 
composition  system  and  by  appropriating  part  of  the 
money,  and  paying  a  part  to  those  injured,  can  give 
support  to  the  State  criminal  law;  as  was  the  case,  for 
instance,  in  the  Italian  systems  of  law,  in  which,  after 
the  weregild  had  degenerated  into  confiscation  of  prop- 
erty, it  was  divided  betwen  the  State  and  the  persons 
injured. 

9.  Not  only  was  it  possible,  thus,  to  strike  at  the  very 
backbone  of  the  perpetrator's  family,   but,  in  addition, 
extreme  humiliation  and  contrition  could  be  required  of 
them.     And  this  was  done  with  excessive  refinement: 
money  and  property,  which  were  the  main  things  to  the 
avengers,  were  forced  more  and  more  into  the  back- 
ground in  favor  of  elements  of  mental  affliction;  and 
apologies,    humiliation,    and    honorable    amends    were 
required  before  reconciliation  was  permitted. 


§27]  CRIMINAL  LAW  273 

10.  In  this  way  the  revenge  idea  settled  into  the 
idea  of  punishment.     In  all  these  acts  of  humiliation, 
the   avenger  played   but  a  passive   part.     He   might 
indeed  gloat  over  his  antagonist's  abasement,  but  this 
was  not  merely  an  individual  satisfaction;   it  was  also 
an  echo  of  the  thought  that  the  impious  nature  of  an 
evil   deed   was  destroyed   by   profound   penance,  and 
that  purification  of  the  soul    led   to    atonement    and 
deliverance. 

It  is  natural  that  religion  should  have  assumed  con- 
trol of  these  elements;  and  so  we  soon  find  the  priest- 
hood eagerly  endeavoring  to  bring  about  reconciliation, 
and  we  also  find  its  religious  accompaniments.  Thus 
the  penitents  were  obliged  to  submit  to  certain  religious 
penances,  and  to  look  for  redemption  with  the  aid  of 
divine  grace. 

Thus  this  element  goes  deep  into  the  foundations  of 
morality,  and  draws  out  a  variety  of  redeeming  ele- 
ments :  the  original  character  of  kin-revenge  is  gradually 
dissipated,  and  loses  its  severity  and  tenacity. 

11.  Another  institution  that  aided  in  destroying  kin- 
revenge  was  the  right  of  sanctuary  which  we  find  in  the 
legal  systems  of  all  the  nations.16 

Sanctuary  in  the  widest  sense  is  a  certain  recognized 
relation  of  the  perpetrator  or  his  family  that  protects 
him  from  kin-revenge.  The  relation  may  be  one  of 
place,  of  time,  of  person,  or  it  may  rest  on  other  con- 
nections. The  underlying  idea  is  always  the  same,  that 
limits  are  set  to  the  kin-revenge. 

We  speak  chiefly  of  local  sanctuary.  It  was  first  to 
be  recognized,  and,  in  fact,  could  not  be  overlooked  in 
historical  research.  Certain  places  or  localities  demand 
a  consecrated  peace.  Any  deed  of  violence,  however 

11  Of  first  importance  for  reference  in  this  connection  is  the  treatise 
of  my  pupil,  Hellwig,  "Asylrecht  der  Naturvolker."  (1903). 


274  STATE  LAW  [CH.VIII 

justifiable,  committed  there,  is  thought  to  violate  the 
sacredness  of  the  place.  This  is  comprehensible,  for 
certain  practices  and  customs  require  complete  quiet 
and  isolation,  and  individual  absorption  in  certain 
trains  of  thought  and  ideas.  Every  disturbance  would 
hinder  the  practice  and  drive  away  the  good  spirits; 
so  much  the  more,  of  course,  would  this  be  the  case, 
if  it  were  believed  that  if  any  deed  of  violence  were 
committed,  infinite  evil  might  thus  be  wrought  to 
mankind. 

Hence  it  follows  as  a  matter  of  course,  that  sanctuary 
is  intimately  connected  with  religious  practices,  and  that 
just  places  of  worship,  in  particular,  places  where  the 
spirits  of  the  dead  were  supposed  to  tarry,  were  places 
of  sanctuary.  Such  were  the  temples,  sacred  groves, 
tombs,  etc.,  and  also  places  of  judgment,  the  judge's 
house,  the  places  where  the  ruler  lived,  the  immediate 
neighborhood  of  the  chief,  and  elsewhere. 

Sanctuary  may  also  be  temporary  (Treuga),  or  per- 
sonal (Anaya),  things  that  lie  within  the  province  of 
the  universal  history  of  law. 

The  whole  idea  of  sanctuary  rests  on  the  above  oppo- 
sition of  the  legal  order  and  peaceable  regulation  (p.  63). 
Sanctuary  is  an  institution  of  peaceable  regulation  which 
is  at  variance  with  the  carrying  out  of  what  the  law 
permits  or  commands;  and  thus  leads  out  and  beyond 
the  latter,  powerful  though  it  be.  Here,  too,  we  find 
peace  and  law  to  be  the  two  factors  which,  in  their 
mutual  effect,  have  guided  evolution  onward.  Peace 
against  law,  law  against  peace;  and,  as  regards  criminal 
law  in  particular,  it  was  the  task  of  peaceable  regulation 
to  destroy  the  element  of  revenge,  as  far  as  possible, 
and  thus  gradually  to  free  atonement  from  its  impure 
component  part,  and  to  purify  and  clarify  the  institu- 
tion of  the  law. 


§27]  CRIMINAL  LAW  275 

(b)     Internal  and  External  Aspect  of  Acts. 

The  psychic  conditions  of  an  act  are  originally  imma- 
terial, or  rather,  they  form  no  decisive  motives.  Their 
origin  and  character  are  not  recognized.  Even  if  one 
kills  another  accidentally  according  to  our  ideas,  accord- 
ing to  the  view  held  by  primitive  peoples,  this  accident 
is  really  the  expression  of  the  spirit  that  rules  the  man; 
for  the  belief  of  early  times  was,  that  a  man  has  many 
souls,  and  that  it  is  one  of  these  that  acts  in  such  a  case. 
The  individual  must,  of  course,  answer  for  the  deed; 
whatever  his  soul  does,  he  does.  The  principle  that 
only  the  objective  deed,  and  not  the  psychic  conditions 
as  well,  is  decisive  has  therefore  a  deeper  background. 
Of  course,  the  difference  cannot  remain  permanently 
unrecognized:  what  is  intentional  and  what  is  uninten- 
tional cannot  be  regarded  as  equal.  The  man  who  lies 
in  ambush  for  another  and  kills  him  cannot  be  placed 
on  the  same  plane  as  the  the  one  who  kills  another  in  a 
wrestling  match.  The  conscious  evil  spirit  that  leads 
to  murder,  and  the  unconscious  demon  that  gives  the 
hand  an  unfortunate  turn  in  a  game,  both,  indeed,  rule 
in  the  man  who  kills,  but  they  cannot  be  compared  with 
each  other.  Even  in  the  time  when  kin-revenge  was 
customary  a  distinction  had  to  be  made.  People  were 
more  inclined  to  be  lenient  in  the  accidental  case  and 
to  accept  atonement  for  the  bloodshed  than  when  the 
intention  to  murder  was  shamelessly  clear.  In  this 
way,  intentional  deeds  were  contrasted  with  uninten- 
tional acts,  and  the  two  were  differently  treated.  Thus 
it  remained  for  a  long  time.  Other  differences  in  guilt 
could  only  be  perceived  after  further  progress  had  been 
made  in  refinement.  The  idea  that  a  wicked  demon  in 
man  governed  contingency  had  to  decline  gradually; 
gradually,  because  its  effects,  by  virtue  of  the  principle 
of  continuity,  were  still  felt  for  a  long  time;  and  it  was 


276  STATE  LAW  [CH.VIII 

a  long  time  before  the  idea  that  even  unintentional  acts 
must  be  punished  could  be  overcome.  But,  by  degrees, 
the  question  had  of  necessity  to  arise:  Did  the  man  do 
everything  that  he  should  do  under  normal  circum- 
stances, or  did  he  act  in  a  manner  inimical  to  life?  The 
evil  demon  had  in  time  to  be  reduced  to  what  is  con- 
trary to  the  conditions  of  life  in  a  man's  thought  and 
action.  If  you  have  done  everything  that  one  would 
do  under  ordinary  circumstances,  then  the  act  can  no 
longer  be  attributed  to  a  demon  within,  and  the  conse- 
quences of  the  act  come  more  and  more  to  be  recog- 
nized as  contingent,  that  is,  as  elements  not  inherent  in 
the  act,  and  merely  connected  with  it  externally.  It  is 
no  longer  the  demon  in  man,  but  the  demon  of  fate  that 
brings  about  the  result;  and  for  this  the  individual 
cannot  be  made  responsible.  Thus  gradually  arises  one 
of  the  most  difficult  conceptions  of  the  law  of  liability  — 
negligence;  and  this  gives  rise  to  the  principle:  one  is 
always  liable  for  intentional  misdeeds,  but  for  uninten- 
tional ones  only  in  case  of  negligence;  that  is,  if  one  has 
not  used  the  necessary  care  to  act  without  disadvantage 
to  mankind. 

(c)    State  Criminal  Law. 

(ad)     General  Remarks. 

State  criminal  law  did  not  develop  in  one,  but  in  five 
ways,  and  like  most  historical  institutions  has  several 
sources. 

1.  From  remote  ages  the  principle  has  prevailed 
that  kin-revenge  could  only  be  practised  outside  the 
family,  never  among  relatives.  Hence,  if  a  man  injured 
or  killed  a  relative,  there  could  be  no  question  of  kin- 
revenge;  for  that  would  have  resulted  in  the  family's 
turning  against  and  devastating  itself,  a  consequence 
entirely  opposed  to  the  idea  of  kin-revenge  which  aimed 


§27]  CRIMINAL  LAW  277 

at  the  preservation  and  advancement  of  the  family  in 
question.  There  was,  therefore,  no  alternative  in  such 
cases  but  to  punish  the  offender,  or  turn  him  out  of  the 
family.  The  latter  course  would  indeed  have  impov- 
erished the  family,  but  that  the  idea  was  conceived  of 
allowing  the  exile  to  return,  so  that  his  absence  was 
merely  temporary.  Exile  was  regarded  more  as  a  means 
of  compelling  the  offender  by  atonement  to  make  his 
own  return  to  the  family  possible.  This  atonement 
was  a  family  atonement,  quite  different  from  kin-revenge 
atonement;  its  purpose  was  not  to  avert  bloodshed  by 
purchase,  but  to  lead  the  unworthy  member  of  the 
family  back  to  it.  This  was  the  case  where  only  one 
family  was  in  question.  Then,  when  several  families 
combined  and  formed  one  union,  it  was  not  unnatural 
that  the  same  idea  should  be  applied  to  this  union,  and 
that  kin-revenge  within  its  circle  should  cease,  even 
when  the  persons  concerned  belonged  to  different  fami- 
lies. In  this  way,  by  the  association  of  several  families, 
the  State  was  formed,  and  thus  it  followed  that  what 
had  formerly  been  peculiar  to  the  association  formed  by 
several  families  should  also  be  adopted  by  the  State 
type  of  association.  Accordingly,  kin-revenge  within 
the  State  automatically  ceased.  This  development,  it 
is  true,  did  not  always  proceed  with  such  logical  definite- 
ness.  The  relationship  among  the  kindred  was  not 
always  sufficiently  intimate,  and  kin-revenge  between 
the  families  was  generally  too  powerful  to  allow  this 
institution  as  a  whole  to  end  immediately;  it  continued 
in  many  instances  up  into  the  period  of  highly  developed 
State  life  before  it  ran  its  course. 

2.  Another  development  occurred  thus:  the  State 
concerns  itself  with  the  institution  of  kin-revenge;  it 
recognizes  it  under  certain  circumstances;  but  it  re- 
quires definite  precautionary  measures,  and  especially 


278  STATE  LAW  [CH.VIII 

that  the  necessity  of  kin-revenge  should  first  be  estab- 
lished by  the  State  and  should  be  carried  out  under  its 
supervision  and  control.  Frequently  a  change  took 
place  whereby  the  carrying  out  of  revenge  was  under- 
taken by  an  organ  of  the  State,  not  by  the  avenger 
himself;  the  place  of  the  avenger  was  taken  by  the 
executioner. 

3.  A  third  development  was  brought  about  by  the 
influence  of  the  divine  law;  for  every  misdeed  was  also 
considered  an  offense  against  the  deity;  in  order  to 
turn  aside  his  wrath,  it  was  necessary  to  make  an  atone- 
ment, which  in  this  case  was  divine  atonement.  To  this 
idea  was  linked  another;  namely,  that  the  atonement 
was  also  in  the  interest  of  the  State;  for  serious  crimes 
involved  not  only  those  immediately  injured  but  also 
the  whole  State.  This  was  naturally  the  case,  first  in 
regard  to  treason  and  other  offenses  that  placed  the 
existence  of  the  State  in  jeopardy.  It  was  then  extended 
to  include  serious  murderous  acts  and  other  things  that 
threatened  to  weaken  the  State. 

Here,  too,  chieftainry  played  an  important  part,  for 
it  meant,  of  course,  an  increase  of  the  chieftain's  power 
if  the  authority  to  punish  were  transferred  to  him  and 
kin-revenge  among  the  families  were  suppressed.  So  it 
came  about  that  strong,  autocratic  chieftains  took  the 
authority  to  punish  into  their  own  hands. 

4.  The  right  of  sanctuary  also  had  an  important 
bearing  on  this  matter.  Whoever  had  sought  sanctuary 
stood  under  the  protection  of  the  wardens  and  keepers 
of  the  place;  thus,  under  the  protection  of  the  priests  or 
judges.  It  is  obvious  that  they  in  turn  interfered  and 
either  shielded  the  fugitive  in  the  sanctuary,  or  declared 
him  to  be  unworthy  of  it.  Thus,  authority  to  examine 
into  the  matter  developed  among  those  who  guarded 
the  sanctuary,  and  this  too  was  one  of  the  sources  of 
churchly  or  State  criminal  law. 


§27]  CRIMINAL  LAW  279 

5.  Through  the  rise  of  a  State  criminal  law,  the  idea 
of  punishment  was  purified  and  freed  from  subjective 
adjuncts.     The  still  dominant  idea  of  individual  revenge 
was  gradually  rejected.     People  did  not  proceed  against 
the  offender  because  of  individual  feeling  against  him, 
but  solely  from  the  social  conviction  that  some  reaction 
must  take  place.     Whether  the  idea  was  a  religious  one, 
and  the  punishment  aimed  at  appeasing  the  anger  of 
the  divinity;  whether  the  chieftain  punished  in  order  to 
wrest  kin-revenge  from  the  hands  of  a  powerful  family; 
or  whether  the  object  was  to  produce  order  and  quiet 
in  the  family;    in  any  case,  the  idea  of  revenge  was 
dropped.     Even  where,  as  in  the  vengeance  of  the  gods, 
it  still  nourished  to  a  certain  extent,  it  was  so  refined 
and  attenuated  that  it  lost  more  and  more  of  its  original 
character;    for,  even  if  punishment  was  inflicted  in  the 
conviction  of  divine  anger;    even  if  the  offender  was 
removed  in  order  to  pacify  the  gods,  and  people  looked 
tremblingly  up  to  the  godhead  who  threatened  to  pun- 
ish a  whole  region  for  the  crime  of  an  individual ;   yet, 
in  all  these  cases,  religious  feeling  was  stronger  than  the 
feeling  of  revenge.    And  even  though  people  might  be- 
lieve in  an  angry  and  vengeful  god,  yet  he  stood  far  too 
high   above  mankind   for  them   to  presume  to  share 
his  anger. 

6.  With   this   appears   the  second  idea  of   criminal 
justice:    namely,  that  the  personality  shall  be  forced 
back,  because  his  action  has  poisoned  the  whole  social 
group  and  threatened  its  existence.    Only  traces  of  this 
idea  appeared  formerly.     That  in  the  development  of 
the  law  the  offender  was  forced  to  retreat  within  his 
own  boundaries,  first  occurred  under  the  egoistic  sen- 
timent of  revenge.    Here,  too,  universal  history  resorted 
to  artificial  means  to  obtain  its  ends.     The  idea  that 
the  offender  must  be  repressed  because  he  had  injured 


280  STATE  LAW  [CH.VIII 

society  still  lay  dormant;  at  most,  the  feelings  of  the 
injured  family  may  have  slightly  vibrated  with  the 
suspicion  that  not  they  alone,  but  all  their  kindred, 
and  the  whole  community,  had  suffered.  This  funda- 
mental idea,  of  which  only  slight  signs  were  seen  in  the 
time  of  kin-revenge,  now  became  the  leading  principle. 
To  it  was  added  a  second  —  greater  consideration  of 
the  motive  of  the  act.  Even  though  in  the  time  of  kin- 
revenge  the  intentional  deed  had  been  distinguished 
from  the  unintentional  act,  yet  the  great  principal 
significance  of  inner  guilt  was  still  little  recognized. 
This  is  easily  comprehensible,  because  the  practice  of 
kin-revenge  was  born  of  personal  feeling,  and,  in  addi- 
tion, the  idea  of  an  evil  spirit  that  dominated  the  guilt- 
less offender  was  still  present. 

But  as  soon  as  the  principle  was  established  that  the 
offender  was  punishable  because  he  opposed  society, 
the  conviction  that  his  opposition  was  brought  about 
just  by  his  culpable  act  was  bound  to  become  of  deter- 
minative importance.  Why  is  it  that  the  deed  poisons 
society?  Because  guilt  produces  guilt;  because  guilty 
action  begets  the  fear  of  further  guilty  action ;  because 
the  immorality  that  lies  in  the  deed  threatens  to  destroy 
the  whole  structure  of  society.  What  was  formerly  a 
subordinate  factor  here  becomes  the  chief  element. 
It  is  the  reprehensibleness,  the  unworthiness,  the  con- 
temptibility  expressed  in  the  deed  that  is  determinative. 

7.  This  conviction  is  fostered  and  strengthened  by 
religious  influence;  for  wherever  in  culture  the  concep- 
tion of  religion  became  deeper,  the  idea  of  the  conse- 
crated and  unconsecrated,  the  godly  and  the  ungodly, 
the  holy  and  unholy,  necessarily  appeared.  In  whatever 
colors  the  notion  first  parades,  it  is  still  the  idea  of 
guilt,  and  of  moral  worthiness  or  unworthiness,  that  is 
prominent  in  the  judgment  of  the  deed. 


J27]  CRIMINAL  LAW  281 

8.  This  is  one  of  the  greatest  strides  of  criminal  law. 
The  deed  is  not  judged  merely  by  its  external,  but 
chiefly  by  its  internal  aspect,  and  the  reaction  adapts 
itself  to  this  judgment.  Thus,  instead  of  vengeful 
retribution,  we  get  refined  justice;  and  punishment 
assumes  the  character  of  an  evil,  the  purpose  of  which 
is  to  force  the  offender  back  into  his  place,  and  by  the 
purifying  power  of  suffering  to  destroy  the  immoral 
poison  that  he  has  poured  into  society. 

(bV)    Justice. 

1.  The  justification  of  punishment  depends  on  this: 
that  we  do  not  regard  man  merely  as  a  creature  of 
nature;  but  assume  that  his  soul  forms  a  concentrated 
unity  expressed  in  the  ego;  that  he  is  an  autocrat  in 
the  realm  of  the  will;  and  that  he  can  make  laws  by 
virtue  of  which  he  acts  thus  or  otherwise.  There  could 
be  no  conception  of  justice,  if  man  were  simply  a  crea- 
ture of  nature,  following  natural  instincts  like  a  ma- 
chine, so  that  there  could  be  no  question  of  guilt.  There 
can  be  no  compromise  with  this  view,  although  the 
attempt  has  been  made;  for  instance,  by  Merkel  and 
some  of  his  successors.  They  assert  that  although 
man  is  determined  in  his  resolves,  that  is,  although 
he  is  forced  to  his  acts  by  an  inner  series  of  causes, 
he  can  yet  be  praised  or  blamed,  and  can  still  be  pun- 
ished; for  there  is  liberty  wherever  external  compul- 
sion is  lacking.  This  is  entirely  untenable17  and  rests 
on  a  complete  confusion  of  the  primary  ideas  of  psy- 
chology; liberty  does  not  consist  in  a  man's  being 
proof  against  external  influences:  a  clock  or  a  machine 
that  is  so  adjusted  to  move  without  external  influence 
is  also  not  free.  Responsible  freedom  is  only  possible 
if  man  himself  is  the  lawgiver,  in  order  to  choose 

"  Compare  "Moderne  Rechtsprobleme,"  p.  34  f. 


282  STATE  LAW  [CH.VIII 

one  thing  or  another ;  and  though  we  can  praise  a  good 
machine  or  blame  a  bad  one,  to  punish  a  machine 
would  be  similar  to  the  action  of  a  child  that  destroys 
her  doll  if  she  does  not  like  its  mechanical  movements. 
I  have  discussed  all  this  at  such  length  in  my  "Moderne 
Rechtsprobleme"  that  I  need  not  return  to  it.18 

2.  In  recent  years  it  has  been  believed  possible 
to  advance  criminal  law  a  step  further  and  to  discard 
the  idea  of  justice  altogether.  This  was  attempted 
in  two  directions,  it  being  asserted  that  the  offender, 
like  every  man,  was  only  a  creature  of  nature  that  acts 
according  to  natural  instincts  by  virtue  of  a  constant 
causal  order.  Hence,  punishment,  as  we  understand 
it,  was  absurd,  mediaeval,  and  contrary  to  the  spirit 
of  modern  times.  Secondly,  it  was  emphasized  that 
the  individual  is  only  the  result  of  his  environment, 
and  the  product  of  society.  The  whole  evil  could  only 
be  combated  by  altering  social  conditions,  or  by  mak- 
ing another  man  of  the  offender,  or  by  excluding  him 
from  society  altogether.  In  this  way,  the  notion  was 
arrived  at  of  the  necessity  of  social  improvement,  and 
further,  the  requirement  that  the  offender  be  cured 
or  society  be  made  secure  from  him.  Only  one  other 
element  was  emphasized  besides,  that  the  penalty  was  a 
means  of  deterring  from  crime.  The  explanations  that 
were  put  forward  in  the  beginning  of  the  nineteenth 
century  were  cited,  according  to  which  two  factors 
appeared  in  deterrence:  first,  the  threat  of  punish- 
ment, which  was  intended  to  act  as  a  counter  motive 
to  the  incentives  to  crime;  and  then,  if  the  threat  alone 
proved  insufficient,  the  visitation  of  punishment.  This 
latter  factor,  however,  occupies  a  very  secondary  place ; 
if  it  were  possible  for  the  first  to  be  effective  by 

"  Compare  also  Alexander  von  Hales,  "Summa,"  II,  fol.  106:  "Liberum 
arbitrium  est  consensus  ob  voluntatis  inamissibilem  libertatem  et 
rationis  indeclinabile  judicium." 


§27]  CRIMINAL  LAW  283 

itself,  the  infliction  of  the  punishment  would  be  quite 
unnecessary.  Punishment  would  only  be  imposed  be- 
cause without  it  the  threat  would  be  void  and  ineffective, 
a  mere  phantom  that  would  at  once  be  recognized  as 
an  empty  shadow.  According  to  this  view,  penal  execu- 
tion would  be  only  an  indirect  necessity;  and  if  it  were 
possible,  let  us  say,  to  deceive  the  world,  and  to  pre- 
tend that  the  punishment  was  being  carried  out,  while 
in  reality  the  criminals  in  prison  were  being  entertained 
by  games  and  dancing,  the  penal  execution  would  then 
be  quite  unnecessary.  If  this  in  itself  is  an  exceedingly 
hollow  and  unreal  view,  the  whole  theory  becomes  still 
more  unendurable,  because  it  implies  that  one  must 
suffer  for  the  sake  of  another.  The  offender,  unfortunate 
victim  of  natural  instincts  that  are  not  sufficiently 
tamed  by  the  threat  of  punishment,  would  thus  have 
to  suffer  in  order  that  the  threat  of  punishment  might 
still  retain  its  force  for  others:  he  would  be  the  souffre- 
douleur  of  society. 

With  ideas  of  this  sort  it  was  believed  possible  to 
advance  criminal  law.  On  the  one  side  was  Feuerbach's 
threat  of  punishment ;  on  the  other,  penal  punishment 
of  the  souffre-douleur  of  society,  and  finally  the  great 
insane  asylum  in  which  criminals  would  be  kept  for  the 
protection  of  society:  for  according  to  this  view,  there 
would  be  no  difference  between  the  insane  and  crimi- 
nals; that  is,  no  difference  that  would  justify  other 
treatment  on  principle,  except  that  with  the  insane  the 
threat  of  punishment  would  be  perhaps  less  effective  than 
with  the  sane  —  and  even  that  is  not  always  the  case. 

3.  One  might  feel  tempted  here  to  write  a  satire. 
Such  a  criminal  law  is  impossible,  or  rather  it  is  no 
longer  criminal  law  at  all.  Instead  of  developing  crimi- 
nal law,  it  was  to  dissolve  it  entirely.  Instead  of  justice, 
we  were  offered  a  mere  empty  semblance. 


284  STATE  LAW  [CH.VIII 

4.  It  would,  indeed,  be  unjust  to  deny  all  merit 
to  this  tendency.  It  did  in  truth  emphasize  things 
which  otherwise  perhaps  would  not  have  been  so  clearly 
seen.  It  is  true  that  social  conditions  are  largely 
responsible  for  crime;  partly,  in  that  a  man  may  be 
deprived  of  the  means  of  subsistence;  partly,  because  he 
may  be  forced  into  an  environment  in  which  his  acti- 
vity cannot  properly  develop,  or  in  that  he  may  be 
surrounded  by  an  impure  and  depraved  atmosphere, 
and  be  brought  into  contact  with  views  of  life  that  under- 
mine his  morality.  No  one  will  deny  this,  and  it  is 
therefore  one  of  our  chief  duties  to  improve  social  con- 
ditions. This  may  be  done  partly  by  public  measures, 
partly  by  private  activities.  Societies  and  charitable 
associations  can  do  much  to  relieve  the  evil,  and  to  fos- 
ter conditions  which  allow  of  a  tolerable  development 
of  moral  and  economic  powers.  It  is  equally  certain 
that  much  can  be  accomplished  by  proper  training  and 
education  of  the  young;  and  that  it  is  a  wrong  system 
to  maintain  as  inviolable  the  principle  of  home  train- 
ing, even  where  children  grow  up  in  a  corrupt  atmos- 
phere which,  like  a  plague,  destroys  all  the  germs  of 
morality.  We  all  know  this,  and  it  requires  no  new 
school  of  criminal  law  to  bring  it  before  our  eyes.  (Com- 
pare above,  p.  108  (b).) 

It  is  equally  true  that  punishment  by  no  means  ends 
the  matter;  that  a  man  must  often  be  subjected  to  com- 
pulsory training  afterwards,  in  order  to  become  a  fit 
member  of  human  society;  moreover,  that  after  he  has 
been  punished  we  have  no  right  simply  to  turn  him  loose 
in  the  world,  but  that  he  must  be  aided  to  return  to 
sound  associations.  It  is  comprehensible  that  in  many 
cases  we  should  regard  compulsory  or  corrective  educa- 
tion as  necessary  after  the  criminal  has  paid  the 
penalty,  and  thus  become  free  from  his  deed:  the  fact 


527]  CRIMINAL  LAW  285 

that  he  has  been  punished  by  no  means  makes  him  a 
useful  member  of  society. 

It  is  none  the  less  true,  that,  even  after  the  penalty 
has  been  carried  out,  it  is  still  often  necessary  to  pro- 
tect society  from  the  offender;  for,  not  every  man  who 
has  served  his  sentence  ceases  to  be  a  dangerous  fel- 
low; not  all  are  so  completely  cured  of  their  passions 
and  evil  impulses,  that  it  is  safe  to  set  them  free  in  the 
world.  But  even  our  fathers  knew  that.  Schwarzen- 
berg,  in  his  day,  and  the  "Carolina"  recognized  perma- 
nent imprisonment  in  cases  where  no  guaranty  could 
be  given  for  a  dangerous  man;  and,  moreover,  it  was 
customary  to  send  such  persons  across  the  frontier,  and 
not  only  across  it,  but  to  banish  them  to  distant  lands. 
In  Alsace  the  offender  was  banished  across  the  Longobard 
mountains,  in  Bamberg  across  the  Alps,  and  another 
means  that  was  considered  so  effective  in  that  cruel 
age,  that  the  Bishop  of  Bamberg  made  it  a  special  law, 
was  blinding.  When  a  man  has  lost  his  sight,  he  is  so 
helpless  that  he  can  no  longer  be  considered  dangerous. 

Today,  of  course,  we  no  longer  banish  and  blind,  but 
we  must  take  other  measures  to  render  the  criminal 
innocuous;  for  instance,  by  deportation,  or  confine- 
ment in  special  institutions. 

5.  It  is  the  task  of  the  present  to  cease  mixing  pen- 
alty, correction,  and  protection  in  one  concoction,  as 
has  hitherto  been  done,  and  regarding  it  as  one  and 
the  same  efficacious  dose.19  In  this  way,  of  course,  the 
idea  of  punishment  was  bound  to  evaporate.  It  is 
indeed  possible,  if  a  man  is  punished  by  loss  of  liberty, 
to  use  this  loss  of  liberty  for  correction  and  compulsory 
education;  but  it  is  a  mere  chance,  if  the  time  of  pun- 
ishment coincides  with  the  time  of  education,  and  as 
regards  the  thought  of  security,  generally  only  the 

»  Compare  "Moderne  Rechtsprobleme,"  p.  44  f .,  61  f. 


286  STATE  LAW  [CH.VIII 

punishment  of  imprisonment  for  life  will  absolutely 
protect  society.  But  it  is  unjust  to  compel  a  man  who 
only  deserves  temporary  loss  of  liberty  to  spend  his 
whole  life  in  a  penal  institution;  whereas,  it  may  be 
perfectly  suitable,  after  he  has  paid  his  penalty,  to  keep 
him  in  an  institution  of  security  (Sicherungsanstalt) , 
the  purpose  of  which  is  solely  security  so  that  no  more 
discomfort  than  is  absolutely  necessary  in  order  to 
afford  protection  to  society  need  be  inflicted.  This 
security  may  of  course  be  obtained  in  other  ways;  for 
instance,  by  forbidding  the  man  to  visit  public  houses, 
as  is  done  in  some  of  the  Swiss  cantons,  etc. 

When  we  have  once  thus  clearly  separated  punish- 
ment from  other  elements,  the  idea  of  punishment  will 
then  appear  in  its  true  light;  and  we  will  be  able  to 
devote  ourselves  so  much  the  more  to  serving  the  ends 
of  justice. 

The  progress  of  criminal  law  will  then  be  as  follows : 

1.  To  distinguish  and  separate  sharply  righteous  pun- 
ishment from  all  the  other  consequences  of  the  evil  deed. 

2.  To  take  equal  care  that  the  misdeed  is  expiated  by 
the  proper  punishment,  and  that  with  this  atonement, 
other  corrective  measures  are  employed. 

(cc)    The  Need  of  Punishment. 

Punishment  must  conform  to  humanity's  need  of 
punishment.  This  need  is  not  an  absolute  one.  This  is 
one  of  the  most  fruitful  thoughts  that  connects  the 
theory  of  retribution  with  modern  feeling  and  makes  it 
capable  of  satisfying  all  the  demands  of  our  present-day 
life.  Above  all,  this  idea  is  important  in  explaining 
and  justifying  pardon;  for,  the  need  of  punishment 
not  being  absolute,  there  is  good  reason  why,  whenever 
important  cultural  conditions  so  indicate,  punishment 
should  be  omitted.  The  consideration  of  prescription 


§27]  CRIMINAL  LAW  287 

is  also  in  accordance  with  this  thought;  for  it  is  time, 
above  all  things,  that  decreases  the  need  of  punishment 
more  and  more.  And  equally  in  accordance  with  it  is 
the  important  modern  institution  of  conditional  sen- 
tence, for  here  the  object  is  to  set  on  his  feet  a  person 
who  has  once  fallen;  and,  after  the  difficult  moments  of 
the  judicial  proceedings,  to  offer  him  a  helping  hand,  so 
that  he  may  improve,  and  remain  in  the  circle  of  those 
who  are  active  in  a  positive  way.  For  this  reason,  he 
must  remain  unpunished  for  the  present;  not  even 
being  subject  to  a  criminal  judgment,  but  rather  the 
deed  must  be  simply  covered  up  and  forgotten.  Hence, 
it  is  best  for  the  conditional  sentence  to  be  so  framed 
that  it  is  actually  carried  out  only  if  the  condition  that 
it  is  desired  to  avoid  really  occurs;  that  is  to  say,  if 
the  offender  behaves  badly,  and  thus  shows  that  there 
is  need  of  punishment  as  regards  the  established  fact. 

(dd)     Details  of  Criminal  Law. 

1.  The  difference  between  completed  acts  and 
attempts  also  comes  more  or  less  into  prominence,  accord- 
ing to  whether  the  subjective  or  the  objective  phase  of 
the  act  is  more  pronounced.  In  regarding  the  question 
subjectively,  so  that  it  is  only  the  inner  guilt  that  is 
expiated,  the  difference  between  attempt  and  completion 
is  only  a  difference  of  chance,  based  solely  on  whether 
the  evil  intention  that  is  projected  into  the  external 
world  encounters  favorable  or  unfavorable  circum- 
stances. There  is  no  longer  any  difference  made  between 
completion  and  attempt.  The  fortunate  chance  that 
prevented  the  completion  of  the  act,  and  turned  it  into 
an  attempt,  cannot  be  credited  to  the  perpetrator. 

It  is  quite  otherwise,  if  not  only  the  guilty  intention, 
but  also  the  destructive  intention,  is  considered.  The 
unsuccessful  act  is  without  disadvantage  to  mankind, 


288  STATE  LAW  [CH.VIII 

and  destroys  no  appreciable  value.  It  is,  indeed,  not 
without  significance  in  its  moral  results,  but  no  illegal 
injury  occurs.  Hence,  the  need  of  punishment  is 
slighter;  for  punishment  conforms  not  only  to  the  seri- 
ousness of  the  guilt,  but  also  to  the  evil  that  the  deed 
brings  about  when  it  strikes  into  the  world  of  values :  the 
graver  the  consequences  are,  the  more  serious  is  its  oppo- 
sition to  society,  and  the  more  necessary  is  punishment. 

It  follows,  as  a  matter  of  course,  that  the  intermediate 
step  between  purely  subjective  and  purely  objective 
treatment  best  covers  the  determinative  factors,  con- 
forms best  to  the  demands  of  justice,  and  therefore 
stands  on  a  higher  plane  than  the  treatment  that  does 
not  punish  the  attempt  at  all  or  punishes  it  equally  with 
the  completed  act.20 

2.  (a)  Several  persons  may  participate  in  the  act, 
either  by  actual  co-operation,  or  by  mere  psychic  influ- 
ence. In  actual  co-operation,  however,  psychic  ele- 
ments also  come  under  consideration ;  for  we  have  only 
to  do  with  true  co-operation  if  several  persons  strive 
toward  the  same  end.  This  working  together  may  be 
mutual,  each  one  knowing  what  the  other  is  doing  and 
striving  to  connect  his  action  with  the  others.  It  may 
possibly,  however,  be  one-sided;  for  instance,  A  knows 
what  B  is  doing,  but  B  knows  nothing  of  Als  action. 
In  such  a  case,  of  course,  B  can  only  be  held  accountable 
for  what  he  himself  did;  whereas  A  is  also  connected 
with  the  success  of  B's  action,  because  he  made  it  a 
means  of  carrying  out  his  own  plan,  and  thus  used  it  in 

M  Thus  even  the  Scholastics,  for  instance  Alexander  von  Hales 
("Summa  de  intentione  in  genere,"  (1515)  II,  fol.  217),  wrote:  "Qui 
voluntatem  plenam  exeuntem  in  opus  habuit,  recipiet  similiter  ratione 
voluntatis  et  ratione  actus:  qui  vero  habuit  tantum  voluntatem,  non 
recipiet  nisi  pro  voluntate,  non  enim  recipiet  pro  eo  quod  non  habuit; 
ergo  hi  duo  ad  paria  in  merito  judicantur."  And  the  exponent  of  natural 
law,  Hugo  Grotius,  "De  jure  belli  et  pads,"  II,  20,  sec.  39;  Pufendorf, 
"De  off.  horn."  II,  13,  sec.  16;  Montesquieu,  "Esprit,"  VI,  16:  "plutot 
.  .  .  ce  qui  attaque  plus  la  societe  que  ce  qui  la  cheque  moms." 


§27]  CRIMINAL  LAW  289 

the  same  way  as  he  would  have  used  some  natural 
operation  to  further  his  own  ends. 

(b)  The  activity  of  the  instigator,  and  that  of  his 
psychic  assistant,  come  under  consideration  in  a  purely 
psychological  way.     The  instigator  is  the  one  who  by 
arousing  the  motive  causes  the  action;   as,  by  means  of 
incentives,  he  stimulates  some  person  to  some  act  in 
which  otherwise  this  person  would  not  engage.     It  has 
been  asserted  that  no  causation  is  possible  here,  because 
the  activity  of  the  instigator  is  directed  towards  a  free 
human  soul  that  cannot  be  regarded  as  subject  to  direc- 
tion;   not,  at  least,  if  we  assume  free  will.     This  view 
has  long  been  refuted.     Under  any  conditions,  the  insti- 
gator can  arouse  the  motives,  and  thus  bring  about  an 
inclination  to  activity,  which  leads  to  the  deed,  if  the 
offender  gives  way  to  it.     His  offense  lies  in  that  he  does 
not  resist  but  acts  in  accordance  with  this  inclination. 
But  this  does  not  prevent  the  man  who  caused  the  inclina- 
tion from  being  responsible,  in  the  same  way  as  he  would 
be  responsible  if  he  laid  something  on  an  inclined  plane, 
where  it  would  fall  unless  some  obstacle  intervened. 

(c)  As  regards  the  liability  of  the  instigator,  various 
ways  have  been  taken.     Some  laws  provide  that  the  insti- 
gator shall  be  more  severely  punished  than  the  per- 
petrator, because  the  initiative  must  be  attributed  to 
him ;  yet,  it  must  be  borne  in  mind  that  the  seed  sown 
by  the  instigator  often  falls  on  fertile  soil,   and  the 
offender  not  seldom  goes  to  work  with  a  light  heart, 
as  soon  as  he  has  received  even  a  slight  impetus;    in 
fact,  it  is  often  the  perpetrator  of  the  deed  who  offers 
himself,  and  awaits  the  instigator's  suggestion.    Hence, 
the  latest  codes  of  law  rightly  and  on  principle  place  the 
instigator  and  the  actual  offender  on  an  equal  basis; 
which,  of  course,  does  not  prevent,  that  in  individual 
cases,  their  punishment  may  vary  greatly. 


290  STATE  LAW  [CH.VIII 

3.  It  is  a  nation's  cultural  position  and  cultural  needs 
that  determine  what  is  to  be  punished.     What  is  trifling 
and  unimportant  to  one  nation  is  grave  and  significant 
to  another.     The  following  points  in  particular  come 
under  consideration: 

(a)  A  nation  that  is  strongly  attached  to  property 
will  punish  offenses  against  property,  especially  theft, 
severely;  while  another  nation,  with  a  weaker  pro- 
prietary sense,  will  punish  the  same  crime  more  mildly, 
perhaps  only  by  a  fine.  That  German  law  originally 
simply  hanged  the  thief  and  had  done  with  it, 
shows  the  strength  of  the  acquisitive  instinct  of  the 
Germans. 

(6)  A  nation  that  especially  loathes  certain  accom- 
panying phenomena  of  the  deed,  punishes  the  latter 
much  more  severely  when  these  phenomena  are  pres- 
ent than  otherwise.  Thus,  for  instance,  German  law 
provides  a  heavier  penalty  for  deceitful  than  for  violent 
offenses. 

(c)  Legislators  sometimes  try  to  bring  about  an 
improvement  in  conditions  by  imposing  particularly 
heavy  penalties  for  certain  crimes.  These  attempts 
can  only  be  successful  if  they  are  supported  by  the 
sentiment  of  the  nation. 

4.  The    relation    between    punishment    and    guilt 
also  is  not  absolute,   but  is   determined   by  the  indi- 
vidual's  mode   of   feeling,   and   the   social    perception 
that  weighs  the  guilt  and  the  atonement  that  corres- 
ponds to  it. 

The  erroneous  assumption  that  capital  punishment 
is  unjust  in  all  cases  has  long  since  disappeared.  For 
the  rest,  the  kind  of  punishment  (imprisonment,  de- 
portation) is  a  matter  for  criminology  to  deal  with,  and 
need  not  be  further  discussed  here. 


527]  CRIMINAL  LAW  291 

2.     Realization  of  Criminal  Law.    Criminal  Procedure 

1.  Criminal  procedure  long  retains  the  same  form 
as  civil  procedure;  the  more  so  because  later  criminal 
law  took  the  place  of  kin-revenge,  and  kin-revenge 
of  course  emanated  from  the  law  of  the  injured  indi- 
vidual. It  is  true  that  as  soon  as  the  idea  of  injured 
human  society  appeared,  a  procedure  could  not  suffice 
in  which  only  the  injured  individual  appeared;  for  the 
need  of  punishment  was  frequently  keen,  even  while 
there  might  not  be  any  relative  of  the  murdered  man, 
or  none,  at  least,  that  would  appear.  Thus,  gradually, 
the  principle  developed,  that  in  such  cases,  where  the 
whole  of  society  appeared  to  be  more  or  less  affected, 
any  one  of  the  people  was  entitled  to  prosecute.  The 
prosecution  became  a  popular  prosecution,  a  system 
that  besides  certain  advantages,  involved  also  serious 
disadvantages;  especially,  as  not  always  the  proper 
persons  appeared  as  accusers.  It  is  therefore  compre- 
hensible that  a  second  procedure  developed  which,  in 
contrast  to  the  more  democratic  principle  of  the  popu- 
lar prosecution,  may  be  regarded  as  monarchical  — 
the  inquisitorial  procedure.  The  idea  from  which  this 
started  was  that  rumor,  public  report,  must  be  treated 
as  taking  the  place  of  an  accuser,  so  that  in  such  a  case 
no  accuser  was  necessary.  The  underlying  reason  was, 
however,  that  the  chief  considered  himself  to  be  the 
representative  of  the  public  interest,  and  declared 
himself  to  be  competent  to  act  wherever  he  supposed 
State  interests  to  be  injured.  When  a  procedure  with- 
out a  complainant  was  thus  constructed,  the  party- 
process  (Partei-Prozess}  had  to  be  given  up  altogether, 
and  legal  procedure  so  transformed  that  the  State, 
that  is,  the  judge,  on  his  own  motion  advanced  every- 
thing that  he  considered  necessary  in  order  to  reach 
correct  conclusions. 


292  STATE  LAW  [CH.VIII 

2.  Thus  it  is  comprehensible  that  the  inquisitorial 
process   (  Untersuchungsprozess)   may    be  good    or  bad 
in  form;    it  may  also  degenerate.     This  happened  in 
the  Germanic  Middle  Ages  under  the  influence  of  the 
system  of  torture  (p.  255),  and  of  the  idea  that  the  exam- 
ining judge  might  use  every  possible  method,  as  far  as 
the  accused  was  concerned,  to  obtain  the  truth.     The 
accused  was  denied  all  the  rights  of  a  person  and  was 
treated  as  a  thing  without  rights,  to  be  used  for  State 
purposes  in  any  way  that  might  be  desired.    The  theory 
of  the  rights  of  man  was  not  yet  invented;    and  the 
legal  sense  was  not  sufficiently  developed  to  make  it 
possible  to  realize  how  greatly  all  the  members  of  the 
State  were  injured  by  such  methods,  and  to  what  ex- 
tent personal  dignity  was  undermined.     The  abolition 
of   this  system,  and  the  transformation  of  the  inquisi- 
torial process,  were  missions  to  be  performed  by  more 
modern  times;   just  as  were  the  abolition  of  torture, 
and  the  establishment  of  the  principle  that  no  one  can 
be  obliged  to  incriminate  himself  and  testify  against 
himself. 

3.  In  contrast  to  this,  the  State  had  to  get  to  the 
bottom  of  the  matter,  and  obtain  the  necessary  proofs 
by  thorough  investigation  of  crimes.     A  perfecting  of 
the  methods  of  examination  and  investigation   neces- 
sarily went  hand  in  hand  with  the  idea  that  the  person 
was  inviolable  to  the  extent  that  he  could  not  be  required 
to  testify   against  himself.     Accordingly,    criminology 
and  criminological  technic,  parallel  with  criminal  pro- 
cedure, developed  to  ever  greater  perfection,    (p.  263.) 
This  is  the  point  at  which  we  now  stand.    There  may 
be  added  the  inclusion  of  the  lay  element,  which  rests 
on  the  general  fundamental  idea  explained  in  the  theory 
of  the  State,     (p.  210.) 


528]  PEACEABLE   PROCEDURE  293 

SECTION  XXVIII 

III.     PEACEABLE  PROCEDURE 

1 .  The  activity  of  the  State  in  furthering  the  develop- 
ment of  the  rights  of  individuals  may  be  denominated 
peaceable  procedure  (Fried ensgang) .    Here  we  are  not 
concerned  with  the  settlement  of   conflicts,    but   with 
peaceful  activity  in  the  adjustment  of  legal  transactions, 
and  the  carrying  out  of  legal  actions. 

2.  The  State  offers  its  aid: 

(a)     For  the  sake  of  the  certainty  of  proof. 
(&)     To   enlighten   those    concerned    in    their    legal 
dealings. 

(c)  To  examine  within  a  certain  compass,  whether 
the  legal  transaction  bears  in  itself  the  presuppositions 
of  legal  efficacy. 

(d)  To  bring  about  publicity  which  is  sometimes  more 
positive  in  nature;   sometimes  represents  a  double  legal 
order  (e.g.,  inheritance  certificate);  sometimes  becomes 
a  condition  of  rights  (e.g.,  land  registry).   Comp.  p.  87  (3). 

(e)  To  establish  organs  or  representatives  for  those 
persons    who,    according    to    definite    legal    principles, 
must  act  through  organs  or  representatives;    for  in- 
stance, guardians,  organs  of  a  juristic  person. 

3.  Peaceable  procedure  is  also  called  non-contentious 
jurisdiction  (freiwillige  Gerichtsbarkeit) .    There  is  a  non- 
contentious  jurisdiction  of  civil  and  of  public  law  (for 
instance,  the  issuance  of  patents).    The  former  is  gen- 
erally considered  exclusive,  but  incorrectly. 

4.  Peaceable  procedure  was  not  developed  in  entirety, 
but  in  individual  cases  of  application,  and  has  only 
recently  been  embodied  in  a  system. 

5.  The  details  belong  to  the  subject  of  legal  technic. 
(Compare  "Einfiihrung,"  3  edition,  p.  202.) 


294  THE  LAW  OF  NATIONS  [Cn.lX 


CHAPTER  IX 

THE    LAW  OF   HUMAN   SOCIETY— THE 
LAW  OF   NATIONS 

SECTION  XXIX 

I.  INTERNATIONAL  LAW  AND  LAW  OF  FEDERATED 
STATES 

1.  The  State  as  the  realization  of  the  moral  idea 
has  sovereignty,  that  is,  an  authority  that  stands  above 
individuals,  limited  solely  by  the  direction  of  the  State's 
aim   and   the   mission   of   culture.     But   the   question 
whether  such  a  restriction  is  fitting  in  the  individual  case 
is  left  to  the  State  alone;   and  its  organs  have  only  to 
consider  how  far  legislation  must  reach  in  order  to 
meet  the  demands  of  culture. 

This  standpoint,  according  to  which  the  State  forms 
the  highest  instance,  is  the  result  of  historical  evolu- 
tion; it  dates  from  the  time  when  the  idea  of  the  world 
empire  had  disappeared,  and  all  the  States  confronted 
one  another  independently,  and  without  supreme 
•  authority. 

2.  The  division  of  mankind  into  States  was  indis- 
pensable; it  had  this  great  advantage,  that  the  members 
of  the  different  States  could  develop  their  qualities  and 
talents  without  being  hindered  by  the  contradictory 
views  and  endeavors  of  others  who  were  dominated 
by  an  entirely  different  view  of  life.     Such  a  national 
formation  is  of  special  value,  because  it  is  the  only  way 
in  which  a  uniformly  gifted  national  group  can  develop 
its  own  life,  its  own  talents,  and  abilities  to  the  utmost, 
(p.  43.) 


J29]        LAW  OF  FEDERATED  STATES          295 

On  the  other  hand,  every  class  of  the  population  has 
its  own  one-sidedness;  it  will  remain  stationary  on  a 
certain  plane  of  education  and  knowledge  unless  it 
receives  impulses  from  without,  and  feels  the  influence 
of  foreign  images  and  ideas;  so  that  a  constant  exchange 
between  its  own  development  and  between  the  assimi- 
lation of,  and  adaptation  to,  external  ideas  takes  place. 

In  this  way,  nations  of  the  first  rank  have  developed 
in  quite  small  State  communities ;  but  in  such  a  manner 
that  constant  reciprocal  action  went  on;  the  most  strik- 
ing example  of  this  is  the  Greeks  of  antiquity. 

It  is  clear,  however,  that  certain  great  aims  can  only 
be  accomplished  in  a  more  extended  national  com- 
munity, particularly,  great  agricultural  aims;  but  indus- 
trial, educational,  and  philanthropic  aims  also  demand 
that  an  extensive  field  shall  be  open  for  endeavors,  and 
abundant  means  shall  be  at  hand  in  order  to  overcome 
the  difficulties. 

3.  In  this  way  State  confronts  State,  each  for  itself, 
but  each  dependent  on  the  other  for  certain  cultural 
purposes.  This  constellation  led  originally  to  a  kind  of 
anarchy;  for  among  the  States,  in  conformity  with  the 
principle  of  sovereignty,  no  law  is  known;  the  source 
of  the  law  is  the  State  and  the  State  only;  it  can  con- 
struct a  system  of  law  as  it  will. 

This  condition  is  unendurable  for  long  and  cannot- 
exist  alongside  of  the  great  cultural  mission  of  humanity. 
Even  antiquity,  even  the  Orient  assumed  that  there  was 
a  higher  law  than  State  law  —  universal  divine  law. 
The  States  by  worshipping  their  gods  regarded  them  as 
the  representatives  of  the  law,  and  the  protectors  of 
concluded  agreements;  and  just  as  the  divine  law  was 
appealed  to  in  order  to  confirm  private  agreements,  so 
too  it  was  used  to  confirm  agreements  between  the 
nations.  This  was  especially  so  because  it  was  assumed 


296  THE  LAW  OF  NATIONS  [Cn.IX 

that  the  divine  laws  of  the  various  religions  had  cer- 
tain points  in  common;  and,  particularly,  that  in  the 
whole  world  of  men  the  principle  was  valid  that  the 
faithful  fulfillment  of  an  agreement  was  a  duty  over 
which  heaven  ruled. 

But  also  in  other  respects  people  believed  themselves 
restricted  by  divine  law;  as,  for  instance,  in  the  manner 
of  declaring  war,  and  other  things. 

In  this  way,  it  is  natural  that  we  should  find,  even  in 
antiquity,  legal  tenets  of  a  law  that  stood  above  the 
nations.  Thus  in  old  Babylonia,  in  the  Egyptian  age, 
and  in  eastern  Asia  (above  all,  in  China),  we  find  a 
variety  of  agreements,  partly  treaties  of  peace,  partly 
treaties  of  justice  (Justizvertrage) ;  and  among  the 
Romans,  too,  the  law  of  agreement  would  have  been  more 
developed  if  the  imperial  character  of  the  Roman  Empire 
had  not  caused  the  whole  conception  of  international 
law  to  totter. 

The  Roman  conception  of  the  world  empire  con- 
tinued up  through  the  Middle  Ages,  till  to  the  destruc- 
tion of  the  imperial  idea;  and,  at  this  point,  international 
law  had  again  to  begin.  It  was  the  necessary  supple- 
ment of  legal  history  as  soon  as  the  dreams  of  a  world 
empire  vanished.  There  was  now  no  longer  an  emperor, 
as  an  emperor  of  the  world,  at  the  head,  to  whom  the 
individual  States  were  subject,  who  judged  them  and 
settled  their  differences.  Hence  the  idea  was  bound  to 
arise  that,  though  no  world  State  stood  above  the 
nations  and  although  the  religious  law,  owing  to  the 
differences  in  religious  conviction,  could  no  longer  urii- 
for  inly  bind  the  world,  yet  a  super-national  lawruled 
that  regulated  the  relations  of  the  nations  to  one  another;, 
they,  neither,  could  live  in  anarchy  but  must  conduct 
themselves  towards  one  another  according  to  definite 
legal  principles. 


§29]        LAW  OF  FEDERATED  STATES          297 

4.  The  idea  of  a  super-national  law  standing  above 
the  sovereignty  of  the  State  was  bound  to  appeal  to  the 
nations,  the  more  because  two  formations  arose  which 
forced  this  idea  upon  them.  On  the  one  hand,  there 
was  the  federation  of  States:  agreements  among  States 
had  assumed  such  proportions  in  some  instances  that  the 
States  really  formed  an  association  and  took  a  variety 
of  enterprises  into  their  common  keeping.  This  con- 
nection was  increased  by  the  institution  called  "real 
union,"  where  two  States  placed  themselves  under  one 
and  the  same  monarch. 

The  matter  necessarily  appeared  still  more  urgent 
when  the  idea  of  the  federal  State  arose;  that  is,  of  a 
State  community  formed  by  a  number  of  States  that 
join  one  another  to  form  a  unified  State,  so  that  the 
members  of  the  individual  States  are  at  the  same  time 
members  of  the  whole  State.  It  is  true  that  this  makes 
it  necessary  for  the  individual  States  to  give  up  some- 
thing of  their  sovereignty,  and  limit  themselves  in  their 
State  authority  in  favor  of  the  unified  State.  The  fed- 
eral State  is  calculated,  on  the  one  side,  to  give  strength 
and  solidity  to  the  whole  and  to  make  it  possible  for 
great  enterprises  to  be  undertaken,  for  commerce  with  for- 
eign countries  to  be  properly  protected,  and  for  the 
individual  to  occupy  a  position  of  respect  abroad.  On 
the  other  side,  it  affords  the  individual  State  the  pos- 
sibility of  cultivating  the  special  relations  that  are 
suited  to  the  character  of  its  population,  and  to  develop 
its  own  life  within  its  own  borders.  The  combina- 
tion between  unified  strength  and  the  preservation  of 
the  peculiarity  of  the  different  circles  of  the  population 
which  is  indeed  possible  in  the  single  detached  State 
but  is  frequently  in  danger  there,  becomes  a  reality 
in  the  federal  State.  The  federal  State  also  makes  it 
possible  for  States  that  would  on  no  account  lose  their 


298  THE  LAW  OF  NATIONS  [Cn.ix 

identity,  by  forming  a  part  of  a  unified  State,  to  join 
together  and  form  a  federation  to  which  they  concede 
only  a  portion  of  their  rights:  thus  the  federal  State 
is  extremely  productive  of  unity,  and  hence  also 
promotive  of  culture.1 

Even  in  antiquity  we  find  examples  of  federal  States; 
but  the  idea  became  fruitful  mainly  through  the  example 
of  the  United  States  of  America,  whose  constitution 
served  as  a  model  for  most  of  the  later  federal  States. 
The  United  States  is  a  conspicuous  example  of  the  fruit- 
ful power  of  this  idea;  it  may  be  that  some  time  in  the 
future  the  States  of  Europe  will  also  join  one  another 
in  this  way  and  form  a  unity.  If  this  were  done,  some- 
thing would  be  realized  that  has  been  merely  a  dream 
and  an  illusion  since  the  fall  of  the  imperial  idea  in 
Europe. 

The  federal  State  endeavors  then  so  to  unite  the  States 
that  the  citizens  of  the  individual  States  are  also  citi- 
zens of  the  whole,  and  yet  belong  to  their  ownStates. 
This  is  the  more  significant  because  the  federal  State 
offers  a  number  of  possibilities  for  development  both 
in  the  direction  of  individualization  and  of  unification; 
for  the  capabilities  of  the  federal  State  may  be  very 
different  from  those  of  the  individual  States.  Thus, 
the  development  is  possible  that  the  number  of  such 
capabilities  increases  and  the  collectivity  inclines  more 
and  more  towards  centralization.  But,  on  the  other 
hand,  it  may  also  be  that  the  tendency  toward  things 
in  common  may  decrease  and  that  distinctions  may 
increase. 

5.  In  a  certain  sense,  the  federal  State  is  a  dissolu- 
tion of  international  into  national  law,  for  the  relation 
between  the  whole  State  and  the  individual  State  is 
not  one  of  international  but  of  national  law;  because 

»  "Moderne  Rechtsprobleme,"  p.  85  f. 


530]  SUPER-NATIONAL  LAW  299 

the  separate  States  have  no  sovereignty,  but  are  sub- 
ject to  the  whole  State,  just  as  are  the  citizens  of  the 
States ;  only  the  relation  of  the  separate  States  to  one 
another  may  be  one  of  international  law  if  the  whole 
State  has  not  taken  these  relations  into  its  keeping  and 
declared  that  they  are  to  be  regulated  by  the  whole 
State.  Nevertheless,  the  federal  States  suggest  inter- 
national law  to  this  extent,  that  here  too  a  super-national 
law  exists;  for  the  individual  States  are  States  and  are 
subject  to  the  law  of  the  whole  State.  But  this  super- 
State  law  again  is  itself  a  State  system;  it  is  the  law 
of  the  whole  State,  not  a  system  of  law  beyond  the  State, 
rooted  in  a  legal  order  that  lies  outside. 


SECTION  XXX 
II.     SUPER-NATIONAL  LAW  (Uberstaatliches  Recht) 

1.  It  would  be  the  ideal  of  cultural  development  if 
all  States  would  unite  in  one  great  whole  and  aid  one 
another  in  the  creation  of  culture;  so  that  a  f  rater-/ 
nalism  would  rule  among  the  nations,  and  each  woulcl 
advance  the  other,  in  order  to  attain  to  the  highest 
technical,  scientific,  and  artistic  achievement.  This 
would  presuppose  a  kind  of  world  empire,  a  great  family, 
the  members  of  which  would  be  the  different  nations; 
a  family  with  common  organization,  and  unified  leader- 
ship. 

This  has  sometimes  been  tried;  frequently  nations 
and  rulers  have  undertaken  to  create  a  world  empire. 
The  most  important  attempt  was  the  great  Christian 
empire  in  the  Middle  Ages  with  the  German  Empire; 
it  had  been  preceded  by  the  mighty  Roman  world 
system.  (Compare  p.  296.) 


300  THE  LAW  OF  NATIONS  [Cn.IX 

These  dreams  have  flown.  An  analogy  to  Roman 
world  law  no  longer  exists,  and  the  union  of  the  nations 
in  one  great  Christian  world-State  has  long  ceased. 
Rather,  as  we  have  already  said,  independent  States 
developed  from  the  ruins  of  the  old  imperialism,  with 
complete  sovereignty;  and  the  nations  therefore  con- 
front one  another  as  individuals,  each  with  its  inde- 
pendent laws,  each,  as  a  State,  creating  a  system  of 
law. 

2.  After  the  separation  of  the  nations,  international 
law,   as  the  super-national  standard,  necessarily  com- 
bined the  nations  and  created  legal  relations  among 
them.    Such  relations  among  the  nations  may  be  more 
or  less  intimate,  or  they  may  be  limited  simply  to  the 
regulation  of  certain  points  in  international  commerce. 
But  as  soon  as  disputes  arise,  their  settlement  entails 
considerable   difficulty.     The   idea   of   establishing   an 
areopagus  of  the  nations,  or  at  least  a  court  of  arbi- 
tration  to   settle   these   disagreements,    bears   witness 
to  a  closer  international  legal   connection.     This   idea 
has  recently  greatly  increased  in  strength,  and  the  desire 
for  peaceful  settlement  has  become  more  and   more 
urgent. 

3.  Of  course,  such  international  legal  customs  al- 
ways  mean   an   interference   with    the   power  of    the 
individual  State;    hence  we  have  to  struggle  against 
very  strong  counter-currents  of  individualistic  national 
nature.    The  passionate  devotion  to  one's  own  nationality 
described  on  page  294,  a  quality  that  in  itself  is  pro- 
motive  of  culture,  will  long  fight  against  bowing  to  such 
a  super-national  law.    Nevertheless,  the  idea  must  grad- 
ually penetrate,  and  when  it  has  become  fully  developed, 
the  chief  step  toward  the  peace  of  the  nations  has  been 
taken:  peace  represents  fraternalism  among  the  nations, 
negative  fraternalism  at  least,  so  that  there  is  no  longer 


530]  SUPER-NATIONAL  LAW  301 

any  active  hatred.  Positive  fraternalism  may  develop 
along  with  it,  but  that  will  require  that  the  nations 
approach  nearer  to  one  another. 

4.  Another  important  point  must  be  noticed  here. 
It  is  not  always  legal  difficulties  that  lead  to  strife, 
but  often  cultural  historical  disagreements  which  prevent 
a  nation  from  occupying  the  position  that  belongs  to 
it  according  to  its  talents  and  its  place  in  the  ranks  of 
the  nations.  Not  seldom  races  are  split  up  under  dif- 
ferent governments;  while  their  union  might  mean  an 
advance  in  culture,  since  the  combination  of  similar 
forces  is  often  able  to  produce  new  advances.  Often- 
times a  nation  is  shut  off  from  the  sea,  the  means  of 
communication  with  other  nations,  and  believes  that 
it  is  in  need  of  this,  in  order  to  develop  itself  economi- 
cally, and  to  take  its  proper  place  among  the  peoples. 
Sometimes  the  industries  of  a  nation  are  injured  by  the 
oppressive  measures  of  another  nation  which  refuses 
to  grant  better  conditions. 

In  these  cases,  the  forces  contained  in  collective  life 
will  strive  for  an  outlet;  and  if  they  are  strong  enough 
the  nation  will  attempt,  if  necessary  with  violence, 
to  gain  the  object  that  it  believes  to  be  a  necessary  con- 
dition of  its  welfare. 

That  such  developments  and  alterations  take  place 
is  a  national  necessity.  The  active  forces  of  humanity 
cannot  be  permanently  repressed.  New  tendencies  and 
ambitions  will  ferment  in  the  old  channels,  and  will  not 
rest  until  they  have  found  their  fulfillment  in  one  way  or 
another;  unless,  indeed,  overpowering  forces  oppose 
them,  which  then  leads  to  severe  oppression.  In  any 
case,  it  will  come  to  a  contest  of  forces  in  order  to  prove 
whether  the  abilities  contained  in  the  nation  are  ade- 
quate to  overcome  the  obstacles.  As  has  been  elsewhere 
emphasized,2  this  is  the  most  important  obstacle  to 

»  "Moderne  Rechtsprobleme,"  p.  104. 


302  THE  LAW  OF  NATIONS  [Cn.  IX 

universal  world  peace,  and  the  last  stronghold  of  war 
can  never  be  destroyed  until  a  method  is  found  of  set- 
tling such  differences  in  a  suitable  way.  We  have  still 
far  to  go  to  reach  this  point,  and  our  concern  at  present 
cannot  be  to  abolish  wars  but  to  restrict  and  limit  them 
to  a  great  extent.3 

5.  When  once  the  idea  has  arisen  in  this  way  that 
there  is  some  law  above  the  State,  a  so-called  super- 
national  law,  we  have  gained  a  new  plane  of  culture. 
The  attempts  to  form  a  world  State  endured  only  for 
a  time  because  it  was  not  possible,  in  view  of  the  size 
of  the  earth  and  the  tremendous  differences  in  mankind, 
to  establish  a  unified  State  government  with  power 
enough  to  operate  from  one  end  of  the  State  to  the  other 
and  yet  give  every  race  the  possibility  of  developing 
independently.  Even  the  boldest  glance  into  the  future 
in  this  direction  can  see  at  the  most  only  State  alliances, 
or  federations  of  States,  under  the  protection  of  which 
the  individual  States  would  stand  and  the  super-national 
law  would  find  its  support.  How  far  in  this  direction 
the  future  formation  of  States  will  go  cannot  be  fore- 
seen; but  in  any  case  it  is  in  a  far  distant  future.  In 
the  meantime,  it  is  a  great  idea  that  the  relations  of 
the  States  to  one  another  should  be  subject  to  a  legal 
order  and  that  here,  too,  not  the  voice  of  power  but 
the  voice  of  culture  should  be  determinative.  It  is  not 
only  the  individual  State  that  should  be  a  centre  of 
culture,  but  the  attitude  of  all  the  States  to  one  another 
should  conform  to  the  cultural  order  so  that  one  does 
not  oppose  and  operate  against  the  cultural  develop- 
ment of  another.  This  is  especially  true  because  our 
commerce  aims  at  overstepping  the  State  boundaries 
and  trade  spreads  over  the  whole  world  without  keeping 

» In  regard  to  notable  peace  efforts  that  date  back  to  Du  Bois  and 
the  Polish  king  Podebrad  (1462),  compare  Schucking,  "Organisation  der 
Welt,"  p.  560,  564. 


§30]  SUPER-NATIONAL  LAW  303 

to  the  limits  of  the  State.  The  exchange  of  wares, 
travel  abroad,  the  constant  interchange  of  ideas  and 
everything  that  intercourse  includes,  makes  the  habits 
of  one  country  known  in  another  where  they  may  be 
adopted  and  become  part  of  the  national  customs. 

6.  But  the  question  is  very  important  whether  super- 
national  law  created  in  this  way,  in  as  far  as  it  is  a  law 
among    the    nations,    also    creates    indirect   rights   of 
individuals;     for  instance,  if  in  an  international  legal 
agreement  it  is  provided  that  certain  religious  societies 
shall    have   juristic   personalities,    or    that    navigation 
shall  be  free.     Here  there  are  two  possibilities:  either 
international  law  only  obliges  the  individal  State  to 
conform  to  the  agreement,  while  the  individuals  of  that 
State  still  remain  subject  only  to  its  own  legislation; 
in  which  case  it  is  indeed  the  duty  of  the  State  to  adjust 
its  legislation  in  conformity  with  this;    but  if  it  does 
not,  the  individual  has  no  means  of  forcing  the  fulfill- 
ment of  the  international  legal  duty.     Thus,  it  would 
be,  for  instance,  if  the  State,  in  spite  of  the  agreement, 
should    through    its   legislation   deprive    the    religious 
society  of  its  juristic  personality.     The  tendency  of 
modern  law  is  to  determine  that  such  a  super-national 
order  also  grants  rights  to  the  individuals  which  are 
independent  of  the  legislation  of  individual  States.    The 
development,  however,  is  not  yet  complete,  and  espe- 
cially the  principle  has  not    yet    been  acknowledged 
that  the  courts  are  able  to  declare  a  law  invalid  because 
it  conflicts  with  international  law.     No  State  should 
cherish  the  idea  that  it  is  completely  isolated,  but  each 
should  realize  that  it  forms  a  part  of  the  great  com- 
munity of  States  in  and  with  which  alone  it  can  operate.4 

7.  Super-national  law  without  the  support  of  a  super- 
State  (  Uberstaaf)  cannot  of   course  be  true  legislation 

« See  my  essay  in  the  "Z.  f.  Volkerrecht,"  II.  p.  209. 


304  THE  LAW  OF  NATIONS  [CH.IX 

(Gesetzesrecht) ;  but  it  can  be  law  that  develops  in 
legal  custom;  it  can  be  customary  law.  (p.  86.)  It  may 
also  arise  in  this  way,  that  the  States  come  together 
and  declare  certain  principles  to  be  valid  principles. 
In  this  way,  too,  the  idea  of  law  is  embodied,  and  made 
the  universal  authority;  just  as  in  an  individual  State 
men  may  establish  customary  law,  thus  raising  it  out 
of  the  condition  of  doubt  onto  a  firm  basis. 


SECTION  XXXI 

III.    ACHIEVEMENTS  AND  ASPIRATIONS 

1.  At  present  international  law  has  not  prospered 
to  the  extent  of  making  the  principle  of  self-help  en- 
tirely dispensable;  and  with  self-help  comes  power, 
and  also  the  abuse  of  power.  A  condition  in  which  the 
law  of  self-help  is  paramount  is  war,  whereby  two  States 
enter  into  an  antagonistic  relation  and  undertake,  by 
methods  admissible  under  international  law,  to  weaken 
each  other  with  the  object  of  attaining  certain  demands, 
and  forcing  the  other  to  yield.  War  was  formerly  a 
relation  outside  the  law.  Although  otherwise  inter- 
national law  was  but  little  developed,  yet  in  peace 
certain  principles  existed;  but  in  war  everything  was 
thought  admissible,  and  people  believed  themselves 
superior  to  all  law.  We  have  ceased  to  hold  this  view. 
In  war  we  do  indeed  tolerate  an  institution  of  self-help, 
but  one  that  lies  within  international  law,  and  that  can 
be  applied  only  under  the  observance  of  its  principles. 
These  principles  have  become  more  and  more  settled, 
and  we  speak  of  humane  war,  meaning  that  only  those 
sufferings  may  be  inflicted  which  serve  the  purposes  of 


§31]  ACHIEVEMENTS  AND  ASPIRATIONS     305 

war;  no  unnecessary  tortures:  war  must  be  a  war  of 
purpose,  not  a  war  of  passion. 

The  controlling  idea  is  that  war  is  waged  only  against 
the  State,  not  against  the  population;  against  the  State 
and  the  organs  of  the  State  to  which  organs  also  the 
combatants  belong;  further,  that  the  activity  of  war, 
in  as  far  as  it  keeps  within  the  limits  of  international 
law,  is  legal,  and  therefore  neither  the  State  nor  the 
combatants  can  be  made  responsible  for  it.  Therefore 
no  harm  may  be  done  to  the  prisoners  of  war,  and  they 
may  only  be  guarded  as  closely  as  is  necessary  in  order 
to  keep  them  away  from  the  enemy  and  thus  to  deprive 
him  of  human  material. 

It  was  long  before  such  principles  were  accepted; 
for  they  are  based  on  conceptual  differences  with  which 
the  nations  originally  were  not  familiar;  and  they  were 
also  at  variance  with  the  passionateness  that  existed 
between  the  nations,  and  which  immediately  extended 
enmity  against  the  State  to  include  also  the  people.  It 
is  a  long  step  from  the  former  system  of  waging  war, 
under  which  whole  classes  of  the  inhabitants  were  made 
slaves  and  where  robbery  and  plundering  were  practised, 
to  the  manner  in  which  wars  are  carried  on  today. 
The  modern  principle  is  a  tremendous  advance,  resting 
on  the  principle  that  even  in  war,  the  results  of  culture 
must  be  spared  as  far  as  possible;  and  that  the  per- 
sonal happiness  of  the  people  must  not  be  injured  to  a 
greater  extent  than  the  purposes  of  war  require. 

But  the  time  will  come  when  wars  grow  ever  rarer 
or  cease  altogether.  Before  this  can  happen,  however, 
super-national  law  must  be  developed  in  such  a  way 
that  the  sovereignty  of  the  individual  States  obeys 
unconditionally  the  authority  of  the  higher  law,  and 
that  organs  exist  for  this  purpose  which  pronounce 
the  higher  law  and  are  in  the  position  to  carry  it  out. 


306  THE  LAW  OF  NATIONS  [CH.IX 

A  fuller  treatment  of  the  subject  belongs  to  inter- 
national law.5  We  have  merely  spoken  here  of  a  future 
when  a  super-national  law  will  stand  above  national 
law,  when  the  State  will  still  be  a  great  cultural  insti- 
tution, but  the  whole  of  humanity  and  the  nations  will 
no  longer  work  alone,  but  in  their  collectivity,  to  bring 
about  the  supreme  aims  of  culture. 

2.  In  international  law,  to  a  greater  extent  than 
elsewhere,  the  great  principle  exists  that  whatever  is, 
is  reasonable.  This  does  not  mean  that  whatever  is,  is 
perfect,  and  needs  no  alteration,  but  that  what  exists 
in  the  life  of  States  and  nations,  daily  fulfills  an  abund- 
ance of  cultural  purposes.  Hence  whatever  exists, 
even  though  it  be  imperfect,  must  be  recognized  as  a 
reasonable  institution;  for  if  it  did  not  exist,  the  situa- 
tion might  become  unendurable,  since  in  an  unorganized 
condition  of  things,  all  the  achievements  of  culture 
would  perish. 

No  special  justification  is  needed  therefore,  if,  through 
the  violence  of  war,  or  in  some  other  way,  a  definite 
change  is  wrought  in  the  international  legal  situation; 
this  change  is  valid,  at  least  as  long  as  no  higher  super- 
national  law  interposes  and  condemns  and  forbids  it; 
for  as  long  as  this  is  not  the  case,  and  the  powerful  means 
necessary  to  enforce  super-national  law  are  lacking,  it 
is  an  unconditional  necessity  to  acknowledge  the  achieve- 
ments of  international  strife.  If  this  were  not  done 
there  would  be  no  hold,  no  order,  or  rule:  what  exists 
could  never  be  replaced  with  something  else  that  would 
fulfill  the  demands  of  culture,  and  thus  we  should  be 
plunged  into  the  miserable  conditions  of  anarchy  and 
statelessness. 

Hence,  the  principle  must  be  maintained  that  as 
long  as  super-national  law  does  not  advance  beyond 

•  "Einfiihrung  in  die  Rechtswissenschaft."  p.  286  f. 


531]  ACHIEVEMENTS  AND  ASPIRATIONS     307 

national  law,  in  this  respect,  also,   the  achievements 
of  war  become  law,  and  must  be  recognized  as  such. 

3.  Agreements  between  States  have  a  double  sig- 
nificance. 

(a)  They  create  rights,  either  of  the  parties  to  the 
agreement  only,  or  also  of  individual  persons,  so  that 
the  latter  can  refer  directly  to  the  treaty  in  demanding 
their  rights,  (p.  303.) 

(&)  In  addition  they  have  this  significance,  that  they 
establish  international  legal  principles;  thus  they  con- 
tribute to  the  growth  of  the  law  as  an  international 
customary  law. 

In  both  respects,  the  philosophy  of  law  must  recognize 
agreements  between  States;  for  nations,  like  individuals, 
are  justified  in  interposing  and  regulating  their  legal 
relations.  The  conditions  of  culture  can  be  best  ful- 
filled, and  cultural  obstacles  removed,  through  the 
possibility  of  such  regulation  in  accordance  with  agree- 
ment. 

It  is  indeed  true  that  in  cases  of  urgent  necessity,  a 
State  may  withdraw  from  an  agreement,  if  it  would 
otherwise  be  obliged  to  sacrifice  its  vital  interests; 
such  a  reservation  should  be  inserted  in  all  international 
agreements;  for  no  nation  is  justified  in  renouncing 
its  conditions  of  life. 

4.  Thus  it  appears  that  the  international  law  of 
today  is  in  a  state  of  insufficiency;   but  it  is  the  sphere 
in  which  we  must  work  for  development  with  the  keen- 
est pleasure  in  creation;   for  the  future  cannot  arise 
unless  it  is  prepared  by  the  power  of  the  present.    What 
the  present  prepares  with  no  prospect  of  immediate 
realization  is  not  work  done  in  vain;    for  it  lays  the 
foundations  of    future  ages:    the  butterfly    can    only 
evolve  from  the  caterpillar  and  the  coccoon. 


First  Appendix 


AUTHOR'S  BIBLIOGRAPHY 


FIRST  APPENDIX 
AUTHOR'S  BIBLIOGRAPHY 

Bddardyana: 

"Sutras,"  with  commentary  of  Sankara. 
Lao-tsze:  "Tao-teh  King." 
Parmenides  (5th  century). 
Zeno  (of  Elea)  (about  500  B.C.). 
Empedodes  (about  500  B.C.). 
Heraclitus  (about  500  B.C.). 
Zeno  (the  Stoic)  (336-264  B.C.). 

Plato  (427-347  B.C.): 


"Republic"; 
"Laws." 

Aristotle  (384-322  B.C.): 
"Nicomachsean  Ethics"; 
"Politics"; 
"Metaphysics." 

Avicenna  (980-1037). 
Al-Gazali  (1059-111). 
Averroes  (Ibn  Roschd)  (1126-1198). 

Anselm  of  Canterbury  (1033-1109): 

"Cur  Deus  Homo?" 
Roscellinus  of  Compiege  (llth  Century) 
John  of  Salisbury  (12th  Century)  : 

"Polycraticus." 
Alexander  of  Hales  (died  1245): 

"Summa  Universae  Theologiae." 

Albertus  Magnus  (1193-1280). 
Thomas  Aquinas  (1225-1274): 

"Summa  contra  Gentiles"; 

"Summa  Theologica"; 

"De  Regimine  Principum." 


312  FIRST  APPENDIX 

Duns  Scotus  (1265(?)-1308): 

"Tractatus  de  Rerum  Principio"; 

"Expositio  in  Metaphysicam"; 

"Quaestiones  Quodlibetales." 
Aegydius  of  Colonna. 
John  of  A  dmont. 
Dante  A  lighter*  (1265-1321): 

"Monarchia." 
Marsilius  of  Padua: 

"Defensor  Pacis"  (1324). 
Dubois  (13th,  14th  Century). 
Occam   (died   1347). 

Bernardinus  Telesius  (1508-1588). 
Tommaso  Campanula  (1568-1630): 

"Ci vitas  Solis." 
Bacon  (1561-1626): 

"Novum   Organon  Scientiarum." 
Descartes  (1596-1650): 

'Principia  Philosophiae"; 

"Meditationes  de  prima  Philosophia." 
Locke  (1632-1704): 

"Essay  Concerning  Human  Understanding"; 

"Two  Treatises  of  Government." 
Spinoza  (1632-1677): 

"Tractatus  Politicus"; 

"Tractatus  Theologico- Politicus." 
Berkeley  (1684-1753): 

"Treatise  on  the  Principles  of  Human  Knowledge"  (1710). 
David  Hume  (1711-1770): 

"Enquiry  Concerning  Human  Understanding"  (1748). 

Machiavelli  (1469-1527): 

"Principe" 

"Discorsi' 

"Historic' 

"Arte  della  Guerra." 
Johann  Oldendorp  (1480-1576). 
Bodinus  (1530-1597): 

"De  Republica." 
Albericus  Gentilis  (1551-1611) : 

"De  Jure  Belli." 


BIBLIOGRAPHY  313 

Johann  Althusius  (1557-1638). 
HugoGrotius  (1583-1645): 

"De  Jure  Belli  et  Pads"  (1625). 
Thomas  Hobbes  (1588-1679): 

"De  Give"; 

"Leviathan." 
Samuel  Pufendorf  (1632-1694) : 

"De  Jure  Naturae  et  Gentium;"  "De  Officio  Hominis  et  Civis;" 

"Monzambano." 
Leibniz  (1646-1716). 
Thomasius  (1655-1728). 
Wolff  (1679-1754): 

"Jus  Natural  (8  vols.  1740-1748); 

"Jus  Gentium  "(1750). 
Montesquieu  (1689-1755): 

"Esprit  des  Lois"  (1748). 

Kant  (1724-1804): 
"Kritik  der  Reinen  Vernunft"; 
"Kritik  der  Praktischen  Vernunft"; 
"Kritik  der  Urteilskraft"; 

"Metaphysische  Anfangsgriinde  der  Rechtslehre." 
Fichte  (1762-1818): 

"Grundlagen  des  Naturrechts  nach  den  Prinzipien  der  Wisaen- 

schaftslehre"  (1796); 
"System  der  Sittenlehre  nach  den  Prinzipien  der  Wissenschafta- 

lehre"; 

"Der  geschlossene  Handelsstaat"; 
"Die  Bestimmung  des  Menschen." 
Schelling  (1775-1854): 

Selected  Writings,  in  3  vols.     (1907). 
Hegel  (1770-1831): 

"Phanomenologie  des  Geistes  (1807); 
"Philosophic  des  Rechts"  (1820); 

"Encyklopadie  der  philosophischen    Wissenschaft"  (1817,  1827, 
1830). 

Hegelians: 
Lasson: 

"System  der  Rechtsphilosophie"  (1882). 
Italians: 

Vera,  Spaventa,  Fiorentino,  Mariano,  Croce. 
Cf.  also,  Marx  (1818-1883). 


314  FIRST  APPENDIX 

Schopenhauer  (1788-1860): 

"Vierfache  Wurzel  des  Satzes  vom  zureichenden  Grunde"; 

"Die  Welt  als  Wille  und  Vorstellung." 
Nietzsche  (1844-1900): 

"Zarathustra"; 

"Jenseits  von  Gut  und  Bose" ; 

"Menschliches,  Allzumenschliches" ;    "Der  Wille  zur  Macht." 

See  also  my  articles  in  "Archiv  fiir  Rechtsphilosophie." 
Eduard  von  Hartmann  (1842-1906) : 

"Phanomenologie  des  sittlichen  Bewusstseins" ; 

"Geschichte  der  Metaphysik" ; 

"Grundproblem  der  Erkenntnistheorie"; 

"Grundlegung  des  transcendentalen  Realismus." 
Stahl  (1802-1861): 

"Philosophic  d.  Rechts"  (3rd  ed.  1856). 
Krause  (1771-1832): 

"System  der  Rechtsphilosophie." 
Ahrens  (1808-1874): 

"Naturrecht  oder  Philosophic  des  Rechts  und  des  Staates." 
Roder  (1806-1879): 

"Grundziige  des  Naturrechts  und  der  Rechtsphilosophie"  (1860). 

Bentham  (1748-1832): 

"Principles  of  Legislation"; 

"Theorie  des  Peines  et  des  Recompenses";     "Organisation  Judi- 

caire." 
Austin  (1790-1859): 

"Lectures  on  Jurisprudence." 
Herbert  Spencer  (1820-1903): 

"Principles  of  Sociology" ; 

"Principles  of  Morality." 

Gravina  (17th  Century). 
Vico  (1668-1744): 

'De  Antiquissima  Italorum  Sapientia"; 

"De  Uno  Universi  Juris  Principio"; 

"Principi  di  una  Scienza  Nuova." 
Genovesi  (1712-1769). 
Filangieri  (1752-1788): 

"Scienza  della  Legislazione." 
Romagnosi  (1761-1835): 

"Introduzione  allo  Studio  del  Diritto  Publico  Universale"; 

"Natura  e  Fattori  dell'  Incivilimento." 


BIBLIOGRAPHY  315 

Calluppi  (1770-1846). 
Rosmini  (1797-1855) : 

"Nuovo  Saggio  sull'  Origine  delle  Idee"  (1830); 

"FilosofiadelDiritto"  (1839). 
Cioberti  (1801-1852): 
Mamiani  (1799-1885). 
Fulci: 

"Filosofia  Scientifica  del  Diritto"  (1906). 

Sanz  del  Rio: 

"Lecciones  sobre  el  Sistema  de  la  Filosofia"  (1868). 
Giner  de  los  Rios: 

"Filosofia  del  Derecho"  (1871). 


Second  Appendix 

KOHLER'S  PHILOSOPHY  OF  LAW 


SECOND  APPENDIX 

KOHLER'S  PHILOSOPHY  OF  LAW1 
BY  ADOLF  LASSON* 

Efforts  toward  a  philosophical  understanding  of  the 
phenomena  of  law  have  not  been  very  active  in  the 
last  two  decades,  at  least  not  in  Germany.  The  philoso- 
phers who  first  of  all  were  fitted  for  such  labor  have 
had  other  things  to  do.  They  have  been  occupied  with 
theories  of  the  validity  of  knowledge  and  empirical 
psychology,  and  have  been  trying  to  find  out  what  Kant 
really  meant  to  say.  Any  philosophizing  about  the 
nature  and  conception  of  law,  its  significance  in  connec- 
tion with  the  universe,  and  its  relation  to  other  forms  of 
the  ethos  must  have  appeared  very  trivial  as  compared 
with  such  immense,  fundamental  problems.  Hardly 
any  change  in  this  attitude  has  come  about,  even  to 
this  day,  among  professional  philosophers.  The  belief 
has  arisen,  however,  in  some  quarters,  that  the  current 
method  of  epistemological  and  psychological  investi- 
gation has  about  as  much  utility  as  the  effort  to  milk  a 
he-goat  into  a  sieve. 

Yet,  the  search  for  the  real  and  conclusive  Kant 
interpretation  is  a  perpetual  allurement  for  certain 
select  spirits;  and  this  enchantment  probably  will  hold 
for  them  its  fascination  for  a  long  time  to  come.  When 
a  substantial  problem  is  encountered,  such  as  the 

» A  review  published  in  "Archiv  fur  Rechts-  und  Wirtschaftsphiloso- 
phie,"  (March,  1909,  Bd.  II,  Heft  3,  pp.  318-326).  translated  by  Albert 
Kocourek,  Lecturer  in  Jurisprudence  at  Northwestern  University,  and 
editor  of  this  volume. 

» Professor  at  the  University  of  Berlin. 


320  SECOND  APPENDIX 

difference  between  the  natural  and  the  mental  sciences, 
these  investigators  hold  their  breath,  with  their  facul- 
ties trained  on  some  formula  dealing  with  the  means 
and  method  of  knowledge,  but  do  not  regard  the  real 
meaning  of  the  object  of  knowledge.  Such  an  inquiry, 
fearful  to  contemplate,  would  be  a  plunge  into  meta- 
physics! 

This  temerity  is  only  characteristic  of  the  age.  We 
prefer  to  understand  religion  by  means  of  a  psychology 
of  religion,  and  art  through  a  psychology  of  art.  Every- 
thing is  resolved  into  a  classification  of  the  feelings. 
Notwithstanding  this,  it  is  yet  true  that  there  are  those 
who  have  never  classified  their  mental  processes,  and 
have  still  retained  their  respectability.  There  are, 
likewise,  others  who  have  never  regarded  their  feelings 
and  have  considered  them  as  unimportant  for  things  in 
themselves,  and  have  passed  over  the  accidents  of  indi- 
viduality to  the  end  that  all  value  and  effort  have  been 
assigned  to  the  function  of  thought  and  the  objects 
embraced  by  thought.  Advancement  of  science  is,  per- 
haps, to  be  sooner  expected  to  come  from  persons  who 
proceed  in  this  way.  This  may  be  true  of  all  depart- 
ments of  knowledge,  and  even  of  Philosophy  of  Law. 
We  shall  not  make  this  a  matter  of  controversy  here. 
Everyone  may  arrive  at  his  own  judgment  as  to  these 
things  without  too  much  difficulty. 

In  any  case,  Philosophy  of  Law,  from  the  standpoint 
of  psychology,  constructed  on  biological  grounds  (from 
the  operation  of  impulses  and  desires,  and  feelings  of 
pleasure  and  displeasure,  and  derived  from  the  nature 
of  things  and  the  application  to  them  of  the  reasoning 
faculties)  is  an  obsolete  and  disaffirmed  pursuit. 

Instead  of  Philosophy  of  Law,  sociology  is  now  the 
subject  that  engages  attention.  The  fairness  of  the 
name  is  thoroughly  appropriate  to  designate  the  inquiry 


KOHLER'S  PHILOSOPHY  321 

to  which  it  is  attached.  It  will  not  be  necessary  to  say 
anything  of  the  wonderful  volume  of  learning  produced 
by  sociological  studies.  The  thing  speaks  for  itself. 
One  has  only  to  think  of  the  deluge  of  books,  pamphlets 
and  essays  which  appear  year  after  year  on  these  sub- 
jects; although  these  efforts  have  more  to  do  with 
formulas,  methods,  and  conclusions  than  with  substan- 
tive matters.  However,  it  is  utterly  indifferent  if  the 
importance  of  these  sociological  investigations  is  rated 
more  or  less.  Philosophy  of  Law  can  neither  be  set 
aside  or  strengthened  by  the  fact;  and,  least  of  all,  for 
those  who  are  not  able  to  discover  in  the  supposed  con- 
tributions of  sociological  thought  anything  more  or  less 
than  certain  voluntary  generalizations  of  the  isolated 
and  accidental  events  of  soul-life,  such  as  are  found  in 
the  external  world. 

Whoever  looks  upon  the  crumpled  metaphysic  which 
the  sociological  method  of  speculation  seeks  to  con- 
struct, as  a  stupid  and  fantastic  mythology,  will  long 
to  escape  from  this  mephitic  atmosphere  to  the  free  air 
of  clear  thought.  He  will  prefer  to  hear  not  of  animal 
impulses  and  desires,  but  of  ideas  of  human  reason  and 
their  logical  consequences. 

Inasmuch  as,  in  Germany,  at  least,  philosophers  are 
otherwise  occupied,  it  is  fortunate  that  the  jurist  has 
entered  where  the  philosopher  has  retired.  Within  the 
last  decade  there  has  been  presented  to  us,  and  we 
have  gratefully  acknowledged,  the  great,  comprehen- 
sive work  of  Berolzheimer,  Rechts-  und  Wirtschafts- 
philosophie.  The  book  of  Josef  Kohler  is  the  product  of 
the  same  spirit,  and  is  the  companion  in  purpose  of 
Berolzheimer's  labor.  It  is  entitled  a  treatise.  While 
Berolzheimer  aims  at  exhaustive  elaboration  of  his 
subject,  and  seeks  to  cover  the  whole  field,  Kohler 
holds  himself  to  brief  outlines.  He  brings  out  the  most 


322  SECOND  APPENDIX 

essential  matters,  and  the  decisive  points  of  view,  but 
only  grazes  the  surface  of  the  luxurious  fullness  of  his 
subject.  The  reader,  by  this  method,  is  given  a  prelimi- 
nary preparation  for  the  consideration  of  this  study. 
He  must  be  able  to  encompass,  as  a  unity,  the  widely 
ramified  matters  involved  in  a  great  and  extensive  co- 
ordination of  ideas.  The  internal  value  and  the  high 
importance  of  fundamental  legal  institutions  and  legal 
principles  must  be  drawn  in  a  number  of  prominent 
and  distinct  lines,  in  order  to  make  a  sharp  impression 
on  the  mind  of  the  learner.  This  survey  is  also  of  impor- 
tance for  legal  science  itself,  to  the  extent  that  every 
juristic  construction  most  securely  admits  in  individual 
cases,  of  the  connection  of  its  development  with  philo- 
sophical foundations.  This  is  the  purpose  of  this  book ; 
and,  in  this  sense,  it  will  fulfill  its  purpose,  and  enrich 
the  literature  of  this  subject. 

With  this  volume,  Kohler  does  not  enter  the  domain 
of  Philosophy  of  Law  for  the  first  time.  Apart  from  the 
great  number  of  his  large  and  small  works  in  science  of 
law,  in  which,  at  all  points,  he  maintains  the  philo- 
sophical spirit,  he  has  written  a  short  sketch  of  Philoso- 
phy of  Law  as  an  introduction  to  his  new  form  of  Juristic 
Survey,  which  contains  many  interesting  ideas,  and  also 
much  that  is  too  adventurous. 

In  his  Introduction  to  the  Science  of  Law  (Einfuhrung 
in  die  Rechtswissenschaff)  which  appeared  first  in  1902, 
and  is  now  in  the  third  edition,3  he  set  for  himself  the 
task  "of  presenting  from  a  high  outlook- tower  a  view  of 
the  whole  science  of  law" — an  undertaking  which  could 
only  be  carried  out  with  the  aid  of  philosophy.  Whilst, 
in  that  work,  he  intends  to  present  "a  preliminary,  gen- 
eral view,  and  a  philosophic  survey  of  the  science  of 
law  to  beginners  of  this  study,"  yet,  he  addresses 

*  [At  this  later  date  in  the  fourth  edition.  — Editor.] 


KOHLER'S  PHILOSOPHY  323 

himself  to  the  whole  thinking  public,  in  the  fixed  con- 
viction that  "an  insight  into  the  law,  and  the  governing 
forces  of  the  legal  system,  is  as  important  for  persons  of 
culture  as  knowledge  of  the  forces  of  nature  which 
surround  us  on  every  hand."  The  result  shows  that  he 
has  rendered  a  service  of  great  value.  In  that  "it  has 
always  been  his  effort  in  all  special  studies  never  to 
leave  out  of  consideration  the  unity  of  these  studies,  or 
the  internal  relations  of  the  whole,"  necessarily  it  must 
have  been  essential  for  him  to  carry  out  and  express,  in 
systematic  form,  the  internal  relations  which  he  perceived 
and  apprehended  in  them. 

This  treatise  on  Philosophy  of  Law  is  to  a  certain 
extent  the  desired  completion,  and  indeed  the  crowning 
effort,  of  the  immense  activities  of  the  author.  The 
great  audience  which  has  learned  to  value  the  numerous 
works  of  the  author  in  their  highly  diversified  fields  of 
effort  will  gratefully  acknowledge  this  treatise  as  open- 
ing up  a  new  viewpoint  on  Kohler's  labors,  and  as  dis- 
closing the  impelling  motive  of  his  scientific  activities. 
It  will,  at  the  same  time,  stimulate  a  more  fundamental 
insight  into  what  he  had  already  accomplished. 

Kohler's  position  cannot  be  understood  from  an 
external  viewpoint.  One  must  sink  into  his  works  in 
order  to  understand  and  appreciate  them.  Kohler  as  a 
man,  as  a  thinker,  as  a  scholar,  and  as  a  writer  is  alto- 
gether an  extraordinary  personality.  He  is  first  of  all 
and  chiefly  a  jurist,  and  there  is  no  department  of  legal 
science  in  which  he  has  not  been  active  in  a  productive 
sense.  Yet,  there  are  branches  of  the  science  of  law 
which  he  has  cultivated  by  preference,  and  in  which  he 
has  attained,  by  unquestioned  accomplishment,  the 
widest  prominence.  While  he  has  achieved  fame  as  a 
jurist,  he  has  also  merited  distinction  in  the  most  diverse 
other  activities./  No  matter  what  he  undertakes,  he  is 


324  SECOND  APPENDIX 

always  interesting;  and  the  tokens  of  a  fruitful  genius 
are  unmistakable  in  all  his  efforts.  Even  those  who 
judge  him  with  the  least  amiability  must  admit  that  he 
disseminates  with  a  copious  hand  an  inexhaustible  full- 
ness of  ideas  of  the  greatest  value.  Thus,  Kohler  is  a 
phenomenon  of  the  rarest  kind;  always  active,  a  maker 
of  the  greatest  activity,  a  delver  into  strange  things,  dis- 
tinguished as  a  creator,  of  untiring  industry,  and  never 
refusing  a  cheerful  assistance. 

The  underlying  power  of  his  abundance,  and  this 
universality  of  unified  effort  are  grounded  on  the  philo- 
sophical nature  of  the  man.  Kohler  is  mentally  cen- 
tered as  a  jurist,  but  his  inner  nature  and  his  boundless 
external  activities  radiate  out  from  the  juristic  center, 
because  he  connects  all  with  all  as  a  philosopher.  He 
never  holds  himself  on  the  periphery  of  the  circle  of 
knowledge,  but  always  exerts  himself  throughout 
toward  the  central  point.  He  places  in  living  relation 
every  particular  of  every  part  of  his  investigations  to 
the  highest  and  most  ultimate  problems  which  he 
attempts,  by  his  own  methods,  to  solve./ 

Therefore,  this  jurist  is  not  simply  incidentally,  but 
by  nature,  a  legal  philosopher.  The  science  of  law  is 
the  richly  equipped  impelling  cause  to  bring  out  his 
constructive  universalism.  After  all,  the  law  is  the 
fundamental  phenomenon  of  the  moral  world.  It  there- 
fore stands  at  the  same  time  in  the  midst  of  the  series 
of  the  natural  order  of  things.  The  law,  therefore,  by 
virtue  of  its  own  nature  and  importance,  is  well  suited 
to  serve  as  the  starting-point,  and  as  the  basis  of  opera- 
tion, for  the  most  extensive  entrance  into  the  most 
diversified  fields  of  intellectual  activity/  Perhaps  these 
reflections  may  make  more  comprehensible  much  of  the 
amazement  aroused  by  Kohler's  peculiar  genius. 
»It  is  unnecessary /for  all  that  J  to  point  out  thatKohler 


KOHLER'S  PHILOSOPHY  325 

pursues  the  idealistic  turn  of  thought.  The  universality 
of  his  efforts  is  grounded  on  idealism.  Idealism  is  the 
basis  of  his  drift  toward  systematic  unity.  Where  the 
empiricist,  the  realist,  is  contented  with  a  mass  of  par- 
ticulars which  he  classifies  according  to  their  external, 
pragmatic  relation,  there  the  idealist  seeks  an  internal 
unity,  a  principle  that  is  immanent  in  and  penetrates  all 
isolated  particulars,  and  which  internally  gives  them  life 
and  form.  This  is  the  method  that  may  be  emphasized 
as  distinctive  of  Kohler.  The  real  is  thinkable,  because, 
according  to  its  nature,  it  is  thought.  Thought  lays  hold 
of  reality  because  they  are  consubstantial,  and  because 
the  same  reason  operates  in  thought  as  in  the  real. 
Thus,  Kohler  seeks  to  maintain  a  close  association  with 
the  objective,  with  the  absolute  idealism  of  the  great 
thinkers  of  the  classical  period  of  German  philosophy. 

By  preference,  he  makes  use  of  Hegel.  No  laudatory 
word  is  too  full  of  praise,  for  Kohler,  to  distinguish  the 
fame  of  this  forceful  man  who  takes  the  same  rank  among 
German  philosophers  as  Goethe  among  the  German 
poets.  In  truth,  these  two  men  mutually  esteemed  and 
honored  each  other  as  like  personalities.  Kohler,  in 
particular,  shows  the  most  ardent  admiration  for  the 
Hegelian  philosophy  of  law  (with  allowances  for  the 
age  which  brought  it  forth)  on  account  of  its  under- 
lying methods  which  scrutinized  its  materials  with  an 
inherent  reasonableness.  Kohler  is  far  removed  from 
Hegelianism  in  the  strict  sense.  He  would  be  a  neo- 
Hegelian.  That  which  in  Hegel  is  abstruse  or  too  arti- 
ficial in  appearance,  he  would  put  aside^/""1 

He  seeks  to  invigorate  the  chilled  fancies  of  Hegel 
with  modern  life,  and  to  enrich  and  more  profoundly 
establish,  with  a  fullness  of  new  facts,  his  benumbed 
ideas.  Kohler  regards  the  Hegelian  dialectic  develop- 
ment of  ideas  as  not  the  strongest,  but  the  weakest  side 


326  SECOND  APPENDIX 

of  his  system.  He  thinks  that  we  may  appropriate  the 
essence  of  Hegel's  great  ideas  without  taking  over  the 
dry  form  of  his  too  abstract,  methodical  process.  Hegel, 
therefore,  is  his  model  and  master;  but,  with  allowances. 

This  reference  to  Hegel  does  not  by  any  means  ex- 
haust Kohler's  standpoint.  The  harp  of  his  system  is 
an  instrument  of  many  strings  which  brings  out  a  har- 
mony of  many  voices.  /It  is  remarkable  to  what  extent 
he  is  able  to  draw  together  the  most  heterogeneous  things 
with  entire  impartiality.  The  fact  that  he  names  Hegel 
as  his  model,  and  in  the  same  breath  also  Aristotle,  is 
natural  and  comprehensible,  since  the  affinity  between 
Hegel  and  the  great  Stagirite  is  too  conspicuous,  and 
the  similarities  in  their  treatment  of  law  and  the  State 
are  too  notorious  to  be  mistaken. 

One  also  will  not  marvel  that  a  man  of  such  vast 
learning,  a  man  proficient  in  the  literatures  and  sciences, 
in  the  customs  and  usages  of  all  peoples  in  all  ages 
within  the  reach  of  history,  should  find  his  pleasure  in 
the  wisdom  of  India,  in  Persian  Sufism,  in  Averroes,  and 
Master  Eckhart,  and  what  goes  with  these  things,  as 
well  as  the  materials  of  a  higher  inspiration  for  the  dis- 
covery of  a  godliness  in  mankind.  On  the  contrary, 
one  may  appreciate  his  feelings,  even  if  one  places  a  very 
high  estimate  on  Kant's  historical  position,  when 
Kohler  bluntly  regards,  with  a  kind  of  repugnance, 
Kant's  open  dualism  and  his  sometimes  narrow-minded 
externality  of  treatment  of  ethical  questions.  Truly, 
it  is  a  childishly  na'fve  thought  to  expect  those  who  have 
brought  their  understanding  of  ethical  things  up  to 
Aristotle  and  Hegel,  to  give  unlimited  acquiescence  to 
the  elementary  Kantian  examination  of  these  problems. 

The  fact  that  Kohler's  system  is  bottomed  on  the 
German  idealism  of  the  first  half  of  the  past  century 
does  not  prevent  him  from  being  thoroughly  modern, 


KOHLER'S  PHILOSOPHY  327 

or  from  employing,  in  any  manner  useful,  the  materials 
brought  to  light  in  the  last  decades.  He  pursues  the 
dominion  of  Idea  which  as  a  formative  power  gives  an 
internal  meaning  to  the  impulses  and  efforts,  and  the 
notions  and  purposes  of  man's  activity,  and  guides  them 
toward  an  end.  But  this  tendency  of  thought  leads 
him  all  the  more  to  have  a  regard  for  the  instincts  of 
the  human  heart,  the  necessities  and  desires,  the  beliefs 
and  habits  which  impel  men  to  action,  as  well  as  the 
material  on  which  Idea  manifests  its  force. 

In  this  sense,  he  everywhere  resorts  to  comparative 
legal  history  in  order  to  make  the  internal  nature  of 
things  more  intelligible.  He  examines  exhaustively  the 
connections  between  law  and  economic  necessities,  and 
does  not  disdain  to  lay  open  the  greatertand  lesser  utili- 
ties which  have  contributed  in  the  creation  of  law,  along- 
side of  the  internal  efficients  which  arise  'out  of  the 
nature  of  things,  and  out  of  the  comprehensive  coher- 
ence of  the  whole  system  of  reality.  He  pursues  the 
conditions  of  the  existence  and  development  of  law 
which  spring  from  social  necessities  with  the  same  dili- 
gence that  he  traces  out  the  consequences  of  the  internal 
principle  of  reason  and  its  logical  consequences.  That 
which  on  logical  grounds  cannot  be  derived  from  an 
innate  co-ordination  —  the  directly  imposed,  the  acci- 
dental, the  unessential  in  time  and  space,  the  sur- 
rounding influences  of  nature  and  the  forces  springing 
from  it,  human  individuality,  racial  peculiarities,  and  the 
external  occurrences  and  fatalities  in  nature  and  human 
life  —  all  this  receives  consideration  without  diminish- 
ing the  great  outward  impulsive  force  of  evolution  which 
towers  over  all  these  accidental  phases  of  life. 

The  praise  of  Kohler  is  well  deserved.  He  thinks 
concretely.  He  does  not  lose  himself  in  abstractions. 
He  sees  one  thing  without  overlooking  another.  His 


328  SECOND  APPENDIX 

constant  effort  is  to  grasp  things  in  their  unity.  Evolution 
is  unquestionably  for  him  the  dominating  factor.  He 
also  has  a  standard  for  the  valuation  of  positive  law  in 
the  idea  of  justice.  He  does  not  neglect  to  make  promi- 
nent the  fact  that  ethical  principles  powerfully  manifest 
themselves  in  the  law.  But,  the  necessity  of  external 
order,  the  requirement  of  having  exact  limits  of  greater 
or  less  external  meaning  as  against  the  internal  nature 
of  social  relations,  and  the  confused  complexity  of  con- 
tending interests  of  individuals  and  social 'communities, 
all  this,  in  Kohler's  treatment  of  his  subject,  has  its  place 
and  shows  its  influence.  He  does  not  neglect  to  admit 
even  the  phenomena  of  psychology  (the  boundless  and 
immense  multiplicity  and  lawless  contingencies  of  the 
internal  world),  at  least  not  if  they  submit  of  approxi- 
mate measurement  as  facts  having  a  certain  kind  of 
regularity.^ 

Ctie  thus  attains  the  position  that  the  law  is  alterable, 
and  energetically  rejects  that  peculiar  notion  which 
assumes  a  fixed  standard  of  justice  in  the  law-fne&ig&s 
TRetM).  He  sketches  (always  in  broad  outline)  the  his- 
tory of  legal  institutions  and  their  unfoldment,  from 
their  primitive  beginnings.  He  follows  out  the  cleavage 
between  substantive  and  adjective  law,  and  brings  about 
an  adjustment  of  this  duality  of  legal  aspect  by  way  of 
interpretation  of  existing  law,  or  by  the  creation  of  a 
new  legal  meaning.  He  clarifies  the  necessity  of  equity 
and  justifies  institutions  like  slavery,  Muttezzeeht,  and 
bondage  of  the  wife,  by  existing  historical  circum- 
stances, economic  conditions,  and  internal  mental  states. 
It  is  possible  for  Kohler,  in  his  view  of  legal  institutions, 
to  turn  from  Hegel  where  he  thinks  that  Hegel  has  gone 
too  far  in  the  effort  toward  an  ideal  construction  of  an 
ideal  law  and  an  ideal  State.  Kohler  interposes  the 
elements  of  the  illogical  and  the  inconsistent  which  have 


KOHLER'S  PHILOSOPHY  329 

their  undercurrent  in  historical  development  Objec- 
tively he  is  right;  but  controversially  he,  perhaps,  does 
not  do  full  justice  to  the  real  doctrine  of  Hegel J 
( It  is  in  harmony  with  Kohler's  standpoint  as  to  the 
Concrete  that  he  does  not  rest  his  position  on  an  external 
scaffolding  erected  principally  on  a  systematic  founda- 
tion, but  limits  himself  to  the  utmost  in  his  discussion 
of  first  principles.  We  gather  from  him  that  the  law, 
as  well  as  all  ethical  things,  is  based  on  the  ultimate, 
ideal  destiny  of  humanity;  that  the  establishment  and 
maintenance  of  culture  and  the  attainment  of  a  perma- 
nent cultural  value  are  the  mission  of  mankind.  But, 
he  does  not  tell  us  what  culture  and  cultural  value  are.4 

He  sets  this  out  as  understood  and  assumed.  That 
law  and  custom,  morals,  and,  finally,  ethics  (as  the  last 
ideality  of  the  internal  life)  are  related,  appears  through- 
out his  writings;  but  the  differences  and  similarities  of 
these  various  forms  of  ethical  determination  of  the  will 
are,  as  a  rule,  not  touched  upon.  The  superstructure 
and  the  arrangement  of  this  philosophy  of  law  are 
systematically  planned,  but  the  foundations  of  this 
construction  are  not  sketched. 

There  is  a  general  part  in  Kohler's  book  which  is, 
as  it  were,  an  introduction  to  philosophy  of  law,  cultural 
evolution,  and  the  relation  between  law  and  culture 
and  legal  order  and  legal  technic.  Then,  there  is  a 
special  part  dealing  with  the  law  of  the  individual  and 
tie  body  politic.  Under  the  law  of  the  individual,  he 

« [This  assertion  has  gained  wide  currency  among  Kohler's  reviewers. 
It  is  stock  criticism  which  seems  to  have  prospered  rather  by  adoption 
than  independent  knowledge  of  Kohler's  writings;  and  Kohler  finds  it 
necessary  repeatedly  to  go  over  his  ground.  "The  essence  of  culture," 
says  Kohler,  "in  the  sense  of  Philosophy  of  Law,  is  the  greatest  possible 
development  of  human  knowledge,  and  the  greatest  possible  development 
of  human  control  over  nature."  — "Vom  Positivismus  zum  Neu-Hegel- 
ianismus"  in  "Archiv  fur  Rechts-und  Wirtschaftsphilosophie,"  Bd.  Ill, 
Heft  2,  (January,  1910).  —Editor.] 


330  SECOND  APPENDIX 

considers  the  law  of  persons  and  property  law.  Family 
law  is  a  division  of  the  law  of  persons.  The  law  of  prop- 
erty is  divided  into  the  law  of  ownership  and  the  law  of 
obligations;  and  a  third  division,  "property  as  a  whole" 
is  added,  under  which  the  law  of  inheritance  is  specially 
treated.  The  law  of  the  State  and  international  law  fall 
under  the  division  of  the  law  of  the  body  politic. 

No  doubt  there  may  be  various  objections  to  this 
classification,  even  from  the  point  of  view  of  an  efficient 
co-ordination  of  legal  notions  and  legal  institutions  in 
detail;  and,  even  more,  from  the  standpoint  of  a  syste- 
matic development  of  this  plan.  Such  a  classification  as 
Kohler's  is  perhaps  sufficient  to  make  comprehensible 
and  distinct  the  detailed  phenomena  of  the  law  in  even 
a  less  coherent  treatment. 

Kohler  has  deliberately  refrained  from  setting  out 
prominently  the  principles  for  the  valuation  and  estima- 
tion of  the  materials  of  the  law.  Accordingly,  they  are 
found  extended  throughout  the  whole  work  in  separate 
observations;  and  it  is  the  reader's  task  to  discover 
from  them  the  internal  volume.  One  may  also  find  in 
this  woik  the  tribute  which  the  contemporary  prefer- 
ence and  habit  of  the  modern  legal  philosopher  pays, 
as  against  the  more  tense  and  also  more  arid  methods 
of  earlier  times./ 

And  now,  there  should  follow  a  detailed  discussion 
of  the  philosophical  views  and  results  which  have  been 
brought  out  by  Kohler's  book.  But,  here  the  reviewer 
encounters  difficulties.  Many,  many  years  ago  the 
writer  himself  published  a  book  under  the  promising 
title,  "System  of  Legal  Philosophy."  Some  may  yet 
recall  it.  Up  to  this  time,  I  had  hardly  hoped  to  find 
for  it  any  warmth  of  reception,  and  its  influence  has  very 
rarely  come  to  my  notice.  This  work  has  now  dis- 
appeared from  the  shelves  of  the  book-dealer,  and 


KOHLER'S  PHILOSOPHY  331 

perhaps  has  also  sunk  into  oblivion  in  the  recollection  of 
men.  I  would  be  glad  to  console  myself  with  the  thought 
that  the  style  of  the  book  was  too  old-fashioned.  I  had 
sought  to  travel  again  in  the  paths  laid  out  by  Aristotle 
and  Hegel.  Kohler,  in  his  own  way,  has  done  the  same 
thing,  but  with  greater  cleverness,  and  with  a  closer 
contact  with  modern  ideas  and  modern  demands. 
Naturally,  therefore,  I  defer  to  him.  Kohler  in  his  book 
had  the  immeasurable  advantage  of  being  able  at  all 
points  to  refer  on  decisive  points  to  his  own  special 
juristic  investigations.  While  I  have  had  a  juristic 
training,  yet  I  have  been  occupied  principally  with 
systematic  philosophy;  and  I  am  not  able  to  claim  any 
special  scientific  learning  either  in  the  law  or  any  other 
special  department  of  knowledge,  with  all  of  which  one 
so  ill-equipped  will  have  to  struggle  in  the  treatment  of 
unified  knowledge.  Nevertheless,  whatever  the  writer 
might  be  able  to  offer  in  the  way  of  criticism  of  Kohler's 
treatise  already  lies  open  in  the  writer's  book,  and 
nothing  is  so  wearisome  as  repetition.  It  would  also 
be  ill-wrought  to  intrude  on  a  public  with  a  right  to  new 
ideas  what  has  long  since  been  advanced. 

Kohler  and  I  are  agreed  on  many  leading  and  funda- 
mental ideas  upon  the  ground  of  a  sameness  of  starting- 
point,  and  of  authorities  which  we  esteem  in  common. 
In  method  and  construction,  as  well  as  in  the  explana- 
tion of  many  detailed  matters,  Kohler  and  I  are  essen- 
tially apart.  Where  Kohler  represents  ideas  which  fall 
in  with  mine,  I  find  in  the  concurrence  of  this  distin- 
guished man  a  highly  valuable  confirmation  of  my  own 
fixed  beliefs.  Where  Kohler  differs  from  me,  naturally 
it  is  my  thought  that  I  am  right,  and  that  he  can  do 
nothing  better  than  return  to  my  notions.  It  is  unlikely 
that  I  shall  change  my  mind.  Those  who  possibly 
may  assert  that  I  am  altogether  beyond  conviction  do 


332  SECOND  APPENDIX 

me  an  injustice;  but,  in  this  case,  I  have  found  in  fact 
no  occasion  to  alter,  in  any  essential  way,  my  previous 
views.  The  opposition  against  what  does  not  satisfy 
me  in  Kohler  concerns  a  position  taken  many  years  ago, 
and  I  may  be  spared  the  task  of  quarreling  with  this 
eminent  jurist  about  various  points  of  view  and  results, 
in  view  of  the  fact  that,  as  a  whole,  I  regard  this  work 
as  deserving  of  the  highest  praise. 

Indeed,  the  work  as  a  whole  is  in  my  judgment  entitled 
to  a  cordial  reception.  It  is  the  result  of  the  ripe  reflec- 
tion on  the  ultimate  facts  of  legal  order  of  a  profound 
and  learned  expert  and  master  —  the  expression  of  a 
noble  purpose  and  done  with  a  skilled  hand.  This 
treatise  is  a  thoughtful  effort,  designed  to  bring  out  to 
the  beginner  in  this  science,  in  broad  outline,  the  forma- 
tive reason  in  the  phenomena  of  law  expressed  in  the 
external  and  human  world;  and  to  give  with  a  fullness 
of  materials,  and  their  scientific  ordination,  an  intimate 
and  rich  suggestion  toward  a  more  profound  knowledge 
of  the  internal  relation  of  the  facts  of  legal  life.  It  will 
be  a  desirable  thing  if  this  treatise  may  be  able  always 
to  maintain  a  prominent  place  in  literature,  and  in  the 
interest  of  the  public.  A  multitude  of  ideas  which  have 
become  lost  to  the  sociological  group  of  thinkers  of  today 
may  be  made  accessible  through  the  receptivity  of  this 
book  to  modern  conditions,  and  thus  may  with  a  vigorous 
impulse  prepare  the  way  for  social  advancement. 


Third  Appendix 


KOHLER'S  PHILOSOPHICAL  POSITION 


THIRD  APPENDIX 

KOHLER'S  PHILOSOPHICAL  POSITION1 
BY  J.  CASTILLEJO  Y  DUARTE  2 

Kohler's  position  in  philosophy  is  not  easy  to  under- 
stand. In  his  writings,  Sankara,  Heraclitus,  Plato,  the 
Neo-Platonists,  Spinoza,  Schelling,  Hegel,  Savigny, 
Schopenhauer,  Darwin,  and  Nietzsche  pass  rapidly  in 
review.  It  is  necessary,  in  considering  this  author, 
sometimes  to  deal  with  diffuse  ideas  and  allusions;  with 
general  formulas,  examples,  and  figures  of  speech. 
Kohler  has  not  yet  presented  a  systematic  body  of 
philosophical  doctrine  which  aims  to  resolve  with  a  cer- 
tainty of  consequence  the  fundamental  problems  of 
knowledge,  nature,  the  law,  art,  etc.  His  standpoint 
at  this  moment  appears  to  be  based  on  a  series  of  affir- 
mations drawn  from  many  different  points  and  tending 
to  a  common  center. 

It  is  impossible,  therefore,  to  be  assured  that  we  have 
found  in  Kohler's  works  the  seed  of  a  doctrine  destined 
to  grow  and  survive;  much  less,  to  foresee  its  definite 
structure  at  maturity. 

The  design,  however,  of  searching  in  a  new  avenue  of 
approach  for  a  solution  of  the  always-new  enigma  of  life, 
with  the  view  of  arriving  at  a  completer  cultural  organi- 
zation, inspires  extraordinary  interest,  especially  when 

i  Introduction  to  "Filosofia  del  Derecho  e  Historia  Universal  del 
Derecho,"  por  J.  Kohler,  in  "Biblioteca  del  Derecho  y  de  Ciencias  So- 
ciales,"  Victoriano  Suarez,  (Madrid,  1910)  translated  by  Albert  Kocourek, 
Lecturer  in  Jurisprudence  at  Northwestern  University,  and  editor 
of  this  volume. 

»  Professor  at  the  University  of  Valladolid. 


336  THIRD  APPENDIX 

the  problem  is  undertaken  by  a  man  of  such  unusual 
learning. 

If  one  philosophic  position  is  ascertained  from  which 
a  concrete  notion  may  be  derived,  then  no  doubt  is  left 
as  to  the  rest.  Kohler  has  accepted  in  these  latter 
years  for  his  doctrines  the  designation  "Neo-Hegelian- 
ism."  Among  the  representatives  of  this  new  school, 
with  views  more  or  less  divergent,  are  Berolzheimer, 
Croce,  and  Mackenzie. 

Philosophy,  for  Kohler  as  for  Hegel,  involves  interpre- 
tation of  universal  values  in  science,  and  their  relation 
to  the  evolution  of  the  All.  It  deals  with  the  transcen- 
dental and  the  metaphysical.3 

This  being  admitted,  what  are  the  foundations  in 
philosophy  of  Neo-Hegelianism?  What  does  Kohler 
take  from  Hegel,  and  what  does  he  add  to  him?  How 
does  he  reconcile  his  views  with  the  scientific  postulates 
of  the  last  hundred  years? 

It  is  certain  that  Hegelianism,  like  any  other  concept 
which  goes  to  the  depths  of  human  thought,  represents 
only  a  fundamental  tendency  of  which  its  founder  is 
not  the  sole  depositary,  but  rather  one  of  many,  even 
though,  perhaps,  its  most  eminent  representative.  The 
more  profound  a  concept,  the  greater  is  its  power  to 
nourish  secondary  outgrowths  which  ramify  in  the  most 
conflicting  directions,  without  anything  in  common 

•The  traditional  and  the  newest  views  unite  in  identifying  meta- 
physics and  philosophy.  Another  standpoint  (Aristotle.  Leibniz, 
Krause)  conceives  philosophy  to  be  a  department  of  science,  as  contra- 
distinguished to  history.  Descartes  on  the  other  hand  opposes  philoso- 
phy not  to  history  but  to  science.  Likewise,  Spencer  regards  science  as 
unified  knowledge  of  particular  objects,  and  philosophy  as  unified  total 
knowledge.  In  Comte,  the  distinction  between  science  and  philosophy 
is  less  precise.  It  appears  that  his  philosophy  has  the  mission  of  build- 
ing up  the  Encyclopedia;  but  his  positivism  (as  in  the  case  of  Spencer 
and  Stuart  Mill)  coincides  with  Aristotle,  the  Scholastics,  and  Hegel  in 
affirming  that  there  can  be  no  science  of  empirical  particulars,  but  only 
of  the  general. 


PHILOSOPHICAL  POSITION  337 

except  the  primary  impulse  which  vitalizes  this  deriva- 
tive movement.  What  would  Spinoza  and  Leibniz  say 
to  being  denominated  Cartesians? 

From  Hegel  there  sprung  a  conservative  or  orthodox 
section  of  thinkers  who  sought  to  keep  faith  with  the 
system  of  the  Master,  holding  to  his  metaphysics,  and 
preserving  his  dogmas  in  religious  inquiries  (Vera,  Spa- 
venta,  Gabler,  Hinrichs,  Goschel).  A  radical  left  wing 
also  rose  up  which  declared  that  faith  was  incompatible 
with  science  (Ruge,  Strauss,  Feuerbach,  and  the  Hal- 
lische  Jahrbilcher).  The  left  wing  did  not  halt  at  posi- 
tivism and  historical  materialism  (Marx);  it  went  as 
far  even  as  the  most  gross  form  of  anarchistic  individual- 
ism (Stirner).  Proudhon,  who  was  under  the  influence 
of  disciples  of  the  extreme  Hegelian  Left,  considered  the 
realization  of  perfection  to  lie  in  the  total  abolition  of 
the  State. 

Kohler  thinks  that  none  of  the  followers  of  Hegel  has 
succeeded  in  finding  the  road  upon  which  the  Hegelian 
system  can  follow  its  unfolding  course,  except  that  per- 
haps some  of  his  disciples,  especially  the  Italians  (Spa- 
venta,  Vera,  Croce),  have  arrived  at  a  more  secure 
orientation. 

Kohler's  Neo-Hegelianism  requires  the  reaffirmation 
of  the  substance  of  the  philosophy  of  Hegel,  and  the 
repudiation  of  its  form.*  It  requires  the  conservation 
of  two  fundamental  ideas,  pantheism  and  evolution, 
and  the  passing-over  of  the  dialectical  method  as  a 
mere  ornamental  device.  The  dialectical  process  is 
simply  a  form  of  making  tangible  to  our  understanding 
the  idea  of  evolution.5  The  Eleatics,  Descartes  and 

*Berolzheimer,  "J.  Kohler  als  Rechtsphilosoph,"  in  "Philosophische 
Wochenscrift"  (Leipzig).  1906,  No.  1. 

»  Kohler,  "Neuhegelianismus,"  in  "Archiv  fur  Rechts-  und  Wirt- 
schaftsphilosophie"  (Berlin  and  Leipzig,  Rothschild)  Jan.,  1908. 


338  THIRD  APPENDIX 

Spinoza,  struggled  with  the  impossibility  of  reconciling 
the  principle  of  constant  change  with  the  principle  of 
eternal  being.  According  to  Hegel,  change  arises  from 
the  union  of  being  and  non-being,  and  he  therefore  char- 
acterizes evolution  as  the  fountain  of  possibilities  from 
which  all  particulars  emanate.6  This  was  his  great  dis- 
covery, although  Lao-tsze  had  already  preceded  him  in 
asserting  that  universal  being  acquired  an  importance, 
when  out  of  its  abundant  possibilities  a  series  of  particu- 
lars arises  and  is  realized. 

The  dialectic  process,  however,  which  attempts  to 
explain  change,  and  to  indicate  the  function  of  evolution 
in  the  world,  is  not  able  to  apply  itself  to  the  discovery 
of  particular  determinations. 

Philosophy,  doubtless,  is  able  to  interpret  d  priori 
the  laws  of  being,  and  even  can  give  us  with  a  certain 
amount  of  probability  some  of  the  final  results  of  becom- 
ing; but,  beyond  this,  d  priori  speculation  ceases  to 
have  any  utility,  and  we  are  thrown  back  upon  observa- 
tion.7 Neo-Hegelianism  "takes  from  Hegel  the  idea  of 
evolution;  it  unites  the  doctrine  of  Heraclitus  with  the 
teachings  of  the  Eleatics,  and  connects  the  Sankhya  school 
with  that  of  the  Vedanta  system;  it  accepts  Platonism 
insofar  as  it  admits  an  ideal  background  beyond  reality; 
it  departs  from  the  epistemological  doubt  of  Kant  in 
affirming  a  correspondence  between  our  consciousness 
and  the  world-process  as  parts  of  one  and  the  same 
unity  (in  accordance  with  Tommaso  Campanella);  it 
substitutes  for  the  uniformity  of  Spinoza's  system  a 
fullness  of  life;  and  puts  in  place  of  the  Hegelian  schema- 
ticism  (which  seeks  by  dialectical  perversion  to  evolve 
the  world  from  an  idea)  a  living  reality."  8 

Hegel's  great  distinction  lies  in  his  conception  of  the 
organization  of  humanity  as  a  moral  unity  in  which 

•  Kohler,  loc.  cit.          '  Kohler,  loc.  cit.  •  Kohler,  loc.  cit.,  p.  231. 


PHILOSOPHICAL  POSITION  339 

there  is  displayed  a  permanent  energy  and  an  eternal 
life.  This  unity  occupies  in  its  evolution  an  intermediate 
position  between  the  dry  Allness  (Allsein)  of  the  Eleatics 
and  the  fluid  continuity  of  the  Jains  represented  in 
Indian  philosophy  by  the  Vedanta  and  the  Sankhya 
systems.  All  things  must  change  in  order  that  the 
thought  eternal  may  come  to  light.  Since  time  is  nothing 
other  than  the  eternal  in  its  movement,  these  eternal 
ideas  cannot  unfold  themselves  in  time  except  in  the 
form  of  movement  —  a  movement  that  is  progressive 
and  not  destructive. 

Evolution  is  the  history  of  the  super-historical;  it 
is  historical  by  virtue  of  its  temporal  operation;  it  is 
super-historical  by  reason  of  the  unity  lying  at  the 
basis  of  its  movement,  which  develops  at  the  last  only 
what  was  in  existence  at  the  beginning.9 

Another  important  central  thought  of  the  Hegelian 
system,  the  principle  of  identity,  is  also  fundamentally 
modified  by  Kohler.  Kohler,  while  admitting  a  tran- 
scendental reality  behind  the  phenomenal  world,  com- 
bats the  Kantian  doctrine,  holding  that  it  involves  the 
annihilation  of  philosophy.  As  already  stated,  he  identi- 
fies metaphysics  and  philosophy,  but  in  the  determina- 
tion of  the  nature  of  ultra-phenomenal  reality  he 
abandons  the  Hegelian  panlogism. 

Fusing  the  problem  of  metaphysics  with  the  problem 
of  knowledge,  he  says  that  for  the  purpose  of  attaining 
an  understanding  of  the  objective  world  it  is  necessary 
that  there  be  no  unbridgable  abyss  between  mind  and 
being  but  that  our  entire  activity,  so  far  as  it  generates 
laws  and  ideas,  must  have  a  co-ordination  with  the  facts 
of  nature.  But  here,  he  adds,  it  does  not  follow  that  the 
relation  between  the  subjective  and  objective  is  one  of 

•  Kohler,  "Wesen  und  Ziele  der  Rechtsphilosophie,"  in  "Archiv,"  etc., 
(October,  1907),  I,  p.  3. 


340  THIRD  APPENDIX 

identity;  that  being  is  not  the  same  as  thought,  and 
that  thought  is  not  the  same  as  being;  but  that  both 
meet  on  a  superior  level  like  two  planes  which  unite  in 
one  line.10 

Neo-Hegelianism  does  not  confine  the  whole  of  objec- 
tive existence  within  the  matrix  of  thought.  According 
to  this  doctrine,  thought  and  being  unite  in  their  ulti- 
mate extension;  in  this,  that  on  one  hand,  the  principles 
of  reality  have  a  certain  contact  with  the  principles  of 
thought;  and  on  the  other,  that  the  final  ends  of  reality 
have  a  relation  to  human  aspirations.  Neo-Hegelianism 
seeks  to  unify  the  infinity  of  external  facts  with  the 
profundity  of  speculative  thought  and  the  objects  of 
humanity's  most  cherished  desires.11 

Inasmuch  as  the  Hegelian  philosophy  did  not  follow 
this  course,  it  was  not  able,  according  to  Kohler,  to 
resist  the  assault  of  the  natural  sciences  and  the  volun- 
tarism of  Schopenhauer.  To  avoid  this,  it  was  neces- 
sary for  Neo-Hegelianism  to  escape  two  errors:  the 
reduction  of  the  phenomenal  world  to  mere  appearance 
(as  was  done  by  Schopenhauer),  and  the  belief  that 
metaphysics  is  able  to  exclude  the  special  sciences,  and 
accomplish  by  its  own  conceptions  that  which  experience 
sought  to  attain  only  by  the  most  laborious  effort. 

Our  ideas  and  the  universe  being  separated,  according 
to  Kohler,  he  does  not  abandon  the  world  as  inert  matter 
but  assigns  to  it  a  certain  spiritual  content  —  a  kind  of 
unconscious  intelligence  (perhaps  similar  to  the  Schel- 
lingian  idea  of  nature)  —  which  manifests  itself  in  the 
tendency  toward  an  end  in  a  course  of  rational  progress 
and  evolution.  Against  those  who  conceive  that  the 
two  concepts  "progress"  and  "rational"  are  simply 
mental  representations,  he  insists  that  to  identify  our 
thought  with  the  idea  of  the  universe  is  to  return  to  the 

"  Kohler,  loc.  cit.  "  Kohler,  loc.  cit.,  pp.  11-12. 


PHILOSOPHICAL  POSITION  341 

Scholastics,  who  attribute  to  the  Divinity  a  mental 
process  like  our  own. 

Neo-Hegelianism  does  not  seek,  as  Hegel  does,  to 
infuse  into  the  evolution  of  the  world  the  categories  of 
reason,  without  learning  through  the  medium  of  experi- 
ence, the  laws  of  universal  evolution  in  human  culture. 
It  is  possible  to  discover  the  fundamental  lines  of  evolu- 
tionary progression  only  on  empirical  highways.  Kohler 
accepts  from  Hegel  his  theory  of  evolution,  the  idea  of 
unity  in  plurality,  and  the  relativity  of  time  (as  d  priori 
concepts) ;  but  seeks  to  put  into  these  ideas  a  content 
(which  was  yet  lacking  in  Hegel's  time)  derived  from 
experience  and  a  study  of  civilization.  The  rational 
character  of  a  world  of  reality  is  his  metaphysical  start- 
ing point. 

The  regularity  of  the  rational  process  can  only 
be  valuated  in  long  periods  of  time.  Neo-Hegelianism 
takes  as  the  object  of  its  investigation  the  infinite 
variety  of  particulars  which  constitute  universal  history. 
It  recognizes,  however,  behind  these  particulars,  a  great 
All,  unlimited  by  time  or  space,  which  manifests  itself 
in  time  as  human  culture,  and  which  unfolds  itself  in 
obedience  to  determinate  laws.  Thus,  the  reason  of 
Hegel  is  converted  into  culture;  and  the  dialectical 
method  is  transformed  into  a  history  of  civilization 
which  is  not  a  chaos  of  particulars,  but  a  process  of 
change  in  the  service  of  a  supreme  end.12 

The  evolution  of  universal  history,  according  to 
Kohler,  is  not  as  logical  as  was  thought  by  Hegel,  and  it 
does  not  always  play  its  themes  in  three  acts.  On  the 
contrary,  history  exhibits  many  illogical  and  disturbing 
pathological  elements  which  do  not  coincide  with  evolu- 
tion, but  run  counter  to  it. 

"  Kohler,  "Moderne  Rechtsprobleme,"  (Tuebner,  Leipzig.  1907),  p.  9, 


342  THIRD  APPENDIX 

The  force  of  history  lies  in  this :  that  ultimately  rea- 
son always  conquers  (optimism).  Its  progress  is  certain, 
but  it  operates  in  a  complex  and  variable  manner. 

The  Hegelian  process  of  Idea,  so  far  as  it  relates  to 
mankind,  changes  to  a  process  of  Culture. 

Kohler  attacks  the  problem  of  knowledge  as  a  rela- 
tion between  subject  and  object.  He  inquires  if  there 
is  in  fact  behind  our  representations  of  the  world  a 
reality  which  would  exist  even  though  we  did  not  exist, 
and  as  to  the  relation  of  this  reality  to  our  representa- 
tions.13 

The  hypothesis  that  our  perception  of  the  world  does 
not  correspond  with  the  reality  leads,  according  to 
Kohler,  to  the  emptiest  scepticism.  The  problem  of 
knowledge  cannot  be  resolved  by  the  data  furnished  by 
the  senses,  but  only  by  philosophy.  Critical  realism, 
which  had  already  been  advanced  by  the  ancients,  was 
attempted  by  such  thinkers  as  Campanella,  and  furthered 
by  the  Scotch  Sceptics.  It  culminated  with  Kant,  but 
instead  of  finding  a  solution,  attained  its  most  acute 
form.  Dualism  has  been  vanquished  by  the  philosophy 
of  identity  (Fichte,  Schelling,  Hegel).  The  ego  and  the 
non-ego  appertain  to  the  same  universal  All,  and  they 
must  be  coincident.  The  contrary  can  only  be  relative 
and  momentary. 

According  to  Kohler,  Kant  exaggerates  the  difference 
between  subject  and  object.  For  him  (Kant)  the  subject 
has  a  place  at  the  front  of  the  world's  stage  and  his 
mental  faculties  reach  no  further  than  phenomena.  He 
is  not  in  a  position  to  know  what  moves  behind  the  scenes. 

Since  Kohler  accepts  the  principle  of  identity  only 
in  part,  he  is  obliged  to  find  a  basis  of  knowledge.  The 
Kantian  notion  of  thing-in-itself  appears  to  him  to  be 

""Moderne  Rechtsprobleme,"  p.  3  et  seq.',  "Lehrbuch  der  Rechts* 
philosophie,"  p.  6  et  seq. 


PHILOSOPHICAL  POSITION  343 

valid  to  the  extent  that  all  influence  over  the  subject  is 
explicable  only  so  long  as  subject  and  object  are  not 
identical,  and  that  object  makes  an  impression  on 
subject.  This  impression  is  our  representation  of 
the  world.  There  can  no  more  be  an  absolute  simi- 
larity between  our  impressions  and  the  world  than 
there  can  be  a  sameness  between  a  mould  and  its 
image.14 

The  difficulty,  of  course,  lies  in  ascertaining  the 
point  of  correspondence;  since  it  is  clear  that  it  is  neces- 
sary to  know  and  to  compare  the  two  involved  ideas: 
the  image,  that  is  to  say,  the  impression,  and  the  mould, 
that  is  to  say,  the  reality.  The  inquiry  turns  back 
upon  itself  in  infinite  succession.  Kohler  accordingly 
deals  with  only  one  of  these  ideas,  the  subject.  He  says 
that  the  mind  is  capable  of  cognizing  its  perceptive  facul- 
ties, and  the  manner  in  which  they  operate  when  receiv- 
ing external  impressions.  He  further  asserts  that  the 
effect  of  these  diverse  external  impressions  is  to  deter- 
mine and  make  permanent  the  notion  of  subjectivity 
as  opposed  to  the  objective  world.  We  are  also  able 
to  demonstrate  in  the  case  of  other  rational  entities 
in  what  manner  their  faculties  operate,  and  how  the 
matrix  of  thought  is  influenced  from  without.  Em- 
ploying another  metaphor,  Kohler  says  that  images 
are  painted  on  the  canvas  of  our  subjectivity,  and  that 
this  canvas  has  a  definite  structure  which  we  are  able 
to  know  and  reckon  with,  in  a  determination  of  what 
is  subjective  and  what  is  not.  He  seeks,  therefore,  to 
distinguish  the  objective  in  knowledge  by  means  of 
subtraction  of  the  subjective.  It  does  not  appear  to 
be  clear  here  how  knowledge  of  our  perceptive  faculties 
and  of  ourselves  is  going  to  escape  the  problem  of 
Criticism. 

i*  "Lehrbuch  der  Rechtsphilosophie,"  p.  8  et  seq. 


344  THIRD  APPENDIX 

By  another  route  —  the  Hegelian  doctrine  of  iden- 
tity —  Kohler  seeks  a  solution  of  the  problem  of  know- 
ledge, perhaps  better  fortified.  The  results  of  our 
thinking  coincide  with  the  external  world.  The  exter- 
nal forces  which  impress  us  operate  in  the  same  way 
that  our  thoughts  tell  us,  provided  that  we  do  not 
err  in  our  perceptive  premises,  and  arrive  at  no  false 
conclusions.  This  results  neither  from  a  pre-estab- 
lished harmony  nor  from  causality,  but  as  a  consequence 
of  our  being  a  part  of  the  world  against  which  we  stand 
in  opposition  only  momentarily.  We  are  part  of  a 
machine,  and  its  movements  must  be  in  harmony,  so 
long,  at  least,  as  the  machinery  is  in  order  and  does 
not  exhibit  pathological  defects.  Thus,  the  exactitude 
of  the  mathematical  axioms,  the  coincidence  of  the 
law  of  causality  within  and  outside  of  ourselves,  and 
all  the  categories  of  Kant,  are  explained.  If  metaphy- 
sical truth  is  not  attainable  by  our  intuition,  yet  it  is 
within  the  compass  of  our  reason.15 

Time  and  space  are  not,  for  Kohler,  simply  an  appear- 
ance (Schein),  but  are  a  reality  (Wirklichkeif) .  In  this 
view  he  rejects  alike  the  idea  of  Sankara,  that  they 
are  illusions,  and  of  Kant,  that  they  are  &  priori  forms 
of  the  subject. 

The  reality  of  time  and  space,  he  holds,  are  relative 
because  there  is  behind  temporal  and  spatial  evolu- 
tion a  background  which  is  beyond  space  and  time. 
In  the  same  way,  the  plurality  of  being  is  absorbed 
in  a  unity  by  means  of  the  law  of  causality. 

Kohler's  effort  is  to  incorporate  the  historical  and 
positivistic  results  of  the  last  hundred  years  into  a 
philosophical  system  of  Hegelian  pantheism;  but  he 
has  to  such  an  extent  attenuated  the  doctrines  of  Hegel 
and  admitted  with  so  much  generosity  the  ideas 

»  "Lehrbuch  der  Rechtsphilosophie,"  loc.  cit. 


PHILOSOPHICAL  POSITION  345 

accepted  from  him,  that  certain  doubts  as  to  his  posi- 
tion are  unavoidable. 

If  we  eliminate  the  results  of  modern  science,  and 
those  ideas  which  no  philosophical  system  is  any  longer 
able  to  accept,  what  is  left  will  be  the  notion  of  con- 
tinuous change  —  decomposition  and  re-composition  — 
dominated  by  an  immanent  reason  (Heraclitus) ;  or 
the  world-creative  idea  of  Plato;  or  the  entelechy  of 
Aristotle,  operating  on  things  as  a  teleological  impulse; 
or  the  universal  being  of  Spinoza,  to  which  there  is  a 
present  tendency  to  revert;  or  the  original  being  of 
Schelling  (in  its  stage  of  identity) ;  or,  perhaps,  the 
Idea  of  Hegel  reduced  to  a  subjective  abstraction,  in 
the  sense  of  the  extreme  Hegelian  Left. 

It  is  very  difficult  to  find  the  root  of  Kohler's  pan- 
theism, not  alone  because  he  has  substituted  for  the 
Idea  of  Hegel  a  somewhat  vague  element  which  he  calls 
Culture,  but  also  because  his  point  of  view  respecting 
the  personality  of  the  Deity  is  not  clearly  stated.  This 
is  true  notwithstanding  that  at  times  one  may  note 
a  providential  factor,  a  force  which  appears  to  energize 
the  world  from  without,  serving  as  its  model,  or  driv- 
ing it  along  a  determinate  course.  This  notion  in- 
volves vestiges  of  the  Christian  (Catholic)  doctrine, 
confined  principally  to  the  realm  of  the  feelings  and 
the  imagination.  One  is  led  to  suspect  that  his  reli- 
gious views  in  their  dual  contact  with  Buddhism  and 
Christianity  approximate  the  concrete  monism  of  Hart- 
mann. 

Neither  is  it  possible  to  assign  to  Kohler  a  place 
among  the  other  followers  of  Hegel;  because  at  times, 
for  example,  he  inclines  to  the  Right,  upholding  the 
metaphysical  view,  and  combats  the  materialistic 
conception  of  reality;  and  at  other  times,  in  asserting 
an  extraordinary  preponderance  for  history  and  a  world 


346  THIRD  APPENDIX 

of  limits,  he  appears  frankly  to  align  himself  with  the 
Left. 

Kohler  seeks  to  throw  aside  the  abstract  principle 
of  Hegel's  philosophy  (the  dialectic  process),  but 
conserves  beyond  question  in  his  system  an  abstract 
foundation  (the  notion  of  evolution  and  progress  which 
is  more  than  mere  change,  in  that  it  signifies  intelli- 
gent direction).  But,  while  it  is  doubtful  whether  Hegel 
extracted  evolution  from  the  metaphysical  order  to 
apply  it  to  the  notion  of  time,  Kohler  resolutely  iden- 
tifies it  with  historical  development.  He  rejects  the 
opinion  of  Stahl,  who  considered  the  dialectic  'process 
as  an  essential  element  of  the  Hegelian  philosophy, 
and  mitigated  it  for  the  epoch  in  which  Hegel  lived. 

Nor  does  Kohler  hold  to  the  rationalism  of  Hegel 
and  affirm  it  for  his  age.  He  is  not  an  intellectualist. 
He  rather  takes  a  position  which  has  a  certain  corres- 
pondence with  that  of  Lange. 

Against  the  dualism  ascribed  to  his  system,  between 
the  historical  world  of  experience  and  the  world  of 
ideas,  Kohler  asserts  a  unity  of  the  rational  idea  and 
reality,  in  that  the  complex  of  particulars  of  the  world 
is  simply  the  emanation  of  divine  thought.16 

Kohler's  place  in  metaphysics  resembles,  by  analogy, 
that  of  Wundt,  who  like  Fouillee,  attempts  a  metaphy- 
sical theory  based  on  experience.  For  Wundt,  meta- 
physics is  the  final  hypothesis  admitted  in  the  present 
state  of  the  empirical  sciences;  it  is  an  evolutive 
construction.  Wundt,  however,  contrary  to  Kohler, 
does  not  concede  a  metaphysical  object,  or  absolute 
being. 

Kohler's  method  of  presentation  of  his  system  is  in 
common  accord  with  the  spirit  which  seems  to  domi- 
nate modern  philosophy.  The  past  few  years  have 

>•  "Moderne  Rechtsprobleme,"  p.  11 


PHILOSOPHICAL  POSITION  347 

witnessed  an  expansive  intellectual  movement,  and  a 
popularization  of  knowledge  comparable  to  the  age 
of  the  Sophists  and  the  Encyclopedia.  Philosophy 
has  ceased  to  belong  to  the  institutions  of  learning  and 
to  the  learned;  it  has  become  the  possession  of  the 
world,  and  an  object  of  common  knowledge. 

The  extension  of  philosophical  knowledge  attracts 
other  pursuits  from  the  retreat  of  professional  seclu- 
sion and  the  refuge  of  closed  doors.  The  Sophists  spread 
philosophy  among  the  upper  classes,  but  Socrates 
carried  it  to  the  street.  Plato,  in  turn,  confined  it  to 
the  Academy,  and  again  made  it  professional.  The 
popular,  dilettante,  and  propagandist  philosophy  of 
the  time  of  the  Aufkldrung,  which  was  represented  in 
different  ways  by  Rousseau  and  Wolff,  was  succeeded 
by  the  intensive  reconcentric  labor  of  Kant  and  Hegel. 

The  current  age  has  laid  hold  of  the  philosophies 
of  Kant  and  Hegel,  dragged  them  from  their  sanctuary, 
and  cast  them  before  the  world.  It  has  done  this  appar- 
ently only  to  destroy,  but  in  reality  to  bring  these  phil- 
osophies into  the  fullest  contact  with  life.17 

This  assimilation  has  resulted  in  much  good,  but  it 
has  also  had  its  price  in  a  certain  inconsistency,  and 
certain  defects  of  logic  which  characterize  modern 
philosophy,  after  the  manner  of  the  eighteenth  century. 

Kohler's  theory  of  law  is  more  fully  developed  than 
his  philosophical  system.  This  is  true,  not  only  on 
account  of  the  substantive  content  possible  in  his  theory 
of  juridical  culture,  but,  perhaps,  more  especially,  be- 
cause it  embodies,  in  diverse  aspects,  modern  scientific 
aspirations. 

It  is  interesting  to  note  in  this  connection  that  the 
philosophical  part  of  the  Juristic  Survey  of  Holtzen- 
dorff  was  first  committed  to  a  Krausean,  Ahrens; 

»  Vide,  Croce,  "Ci6  ch'S  vivo  e  cio  ch'e  morto  nella  filosofia  de  Hegel.1' 


348  THIRD  APPENDIX 

afterward  to  an  Herbartian,  Geyer;  later  to  a  positivist, 
Merkel ;  and  finally,  as  by  way  of  reversion,  to  close  the 
circle,  to  an  idealist,  Kohler.18 

It  may  without  doubt  be  asserted  that  it  was  not 
simply  his  pantheism,  nor  yet  alone  his  spiritual  idealism 
which  has  brought  Kohler  to  the  position  taken  by 
him;  but  rather  the  coincidence  of  other  influences 
which  distinguish  the  age.  These  influences  are  the 
reconstruction  and  advance  of  a  conquering  positi- 
vism; the  acceptance  of  evolutionary  ideas;  the  unir 
versal  and  scientific  character  of  comparative  law; 
the  desire  to  conciliate  the  struggle  between  monism 
and  dualism;  the  polarity  of  moral  ideas;  the  place 
assigned  to  culture  in  history;  and  the  infiltration  of 
an  ethical  ideal  into  the  entire  juridical  groundwork  of 
life. 

Where  Kohler  appears  to  have  departed  from  the 
path  indicated,  as  in  the  problem  of  the  functions  of  the 
judge  and  in  the  nature  of  punishment,  his  theory  has 
found  little  echo. 

The  whole  movement  of  modern  philosophy  of  law, 
considered  in  the  totality  of  one  of  its  most  character- 
istic aspects,  represents  a  fusion  of  the  ideas  dominant 
in  the  eighteenth  and  nineteenth  centuries. 

In  the  eighteenth  century  the  current  of  thought 
which  has  received  the  name  dualism  reached  its  great- 
est perfection.  It  produced  a  conception  of  law  as 
something  universal,  perfect,  immutable,  absolute,  and 
eternal,  as  distinguished  from  another  law  that  was 
contingent,  relative,  established,  or  imposed.  This 

18  [Vide,  Holtzendorff,  "Enzyklopadie  der  Rechtswissenschaft,"  6th 
rev.  ed.  (Duncker  und  Humblot,  und  J.  Guttentag,  Leipzig  and  Berlin, 
1904), which  contains  Kohler's  monograph  above  referred  to — "Rechts- 
philosophie  und  Universalrechtsgeschichte."  For  a  list  of  the  literature 
of  Juristic  Survey,  see  Carets,  "Introduction  to  the  Science  of  Law" 
(Vol.  I  of  this  series),  The  Boston  Book  Company,  1911,  p.  27.  — Editor.] 


PHILOSOPHICAL  POSITION  349 

unchangeable  law  was  thought  to  be  immediately  appli- 
cable to  social  relations  in  every  country  and  in  every 
age. 

Nevertheless,  the  sharp-edge  of  the  dualism  of  Wolff 
or  Kant,  which  was  the  product  of  an  old  process  of 
ideas,  did  not  hew  the  line  of  an  epoch  in  philosophy 
except  to  mark  the  boundary  of  another  age  of  thought. 
While  dualism  appears  to  have  been  finally  cast  aside, 
yet  from  its  fundamental  idea  new  forms  of  thought 
have  arisen. 

Among  the  incipient  forms  of  philosophic  thought 
which  preceded  the  culmination  of  dualistic  speculation 
or  the  attenuated  variations  which  followed  it,  there 
are  extremities  of  shading,  so  that  it  is  impossible  to  say 
with  precision  whether  they  should  be  denominated 
dualistic  theories  or  not.  This  doubt  exists  even  with- 
out going  to  the  extreme  of  a  Bergbohm,  according  to 
whom,  no  one  is  wanting  in  contact,  to  a  greater  or  less 
extent,  with  dualistic  contagion,  unless  it  is  himself.19 

The  eighteenth  century  with  Montesquieu,  Wolff, 
the  Encyclopedists,  Rousseau,  and  Kant  presents  the 
culminating  point  of  a  curve  which  surveys  the  whole 
historical  evolution  of  the  Philosophy  of  Law.  This 
curve  exhibits  a  continuous  series  of  shifting  positions 
so  that  only  observations  of  the  greatest  generality 
have  a  common  point  of  view. 

Among  the  Greeks,  Philosophy  of  Law  appeared  to 
attach  itself  to  the  inquiry  as  to  whether  legal  standards 
were  natural  or  artificial  products;  whether  the  dis- 
tinction between  justice  and  injustice  proceeded  from 
nature,  or  the  laws  and  customs  of  the  people.  In  the 
language  of  our  day,  the  question  was  whether  law  had 
a  metaphysical  basis. 

»•  Not  even  he  is  free  from  it,  according  to  Neukamp.  Stammler,  also 
intimates  that  an  exposition  of  Bergbohm's  system  discloses  dualism. 


350  THIRD  APPENDIX 

One  group  (Archelaus,  Protagoras,  and  other  Sophists) 
regarded  justice  as  a  category  created  by  the  laws. 
Another  group  (Hippias,  Callicles,  and  another  divi- 
sion of  Sophists)  declared  that  positive  laws  were  con- 
trary to  nature.  Aristotle  clearly  formulated  a  dualistic 
theory  of  justice.  He  held  that  there  is  an  immutable 
law  which  is  the  product  of  reason,  common  to  all  men 
and  universal;  but  without  constructing  a  code  of  this 
law  after  the  fashion  of  the  eighteenth  century.  His  law 
of  reason  was  rather  a  living  law  like  the  jus  gentium 
of  the  Romans. 

Man,  however,  has  a  relation  that  is  other  than  uni- 
versal. His  activities  exhibit  particular  relations  to 
which  the  application  of  this  universal  law  is  insuffi- 
cient. There  is  another  positive  constituent  of  total 
living  law  which  does  not  appear  to  arise  from  an  uni- 
versal and  common  source  (reason),  but  which  is 
generated  by  an  historically  circumstantial  agency, 
the  will. 

Aristotle's  dualism,  therefore,  is  not  based  on  a 
divine  plan  (as  was  the  case  with  St.  Augustine,  who 
Christianized  Plato);  nor  is  there  in  his  system  a 
rational  order  of  justice  which  the  world  must  approxi- 
mate. The  universal  element  of  human  reason  cannot 
govern  the  totality  of  life's  activities,  but  must  leave 
them  in  part  to  the  influence  of  other  forces.  There 
is,  therefore,  no  opposition  between  two  codes  —  one 
a  perfect  and  rational  order,  and  the  other  an  imper- 
fect and  positive  system  (Wolff).  There  is  not  even 
a  competing  double  standard  of  certain  eternal  ideals, 
and  a  mutable  and  historical  reality  which  seeks  to 
approximate  the  former  (Ahrens) ;  nor  even  yet  a  two- 
fold order  consisting  of  an  absolute  principle  qualify- 
ing the  just  and  a  series  of  relative  propositions  which 
are  measured  by  the  absolute  (Stammler).  Natural 


PHILOSOPHICAL  POSITION  351 

law  and  positive  law  are  two  parts  of  the  same  active, 
unified  reality. 

The  Middle  Ages  rejected  the  immanence  of  ends 
in  the  world  and  consigned  this  finality  to  an  exter- 
nal abiding  place.  St.  Thomas  combined  the  theory 
of  Aristotle  and  that  of  the  Roman  jurists  with  the 
philosophical  doctrines  of  the  Church  Fathers.  Nat- 
ural Law  is  now  thought  to  arise  from  divine  reason 
(from  divine  will,  according  to  Scotus),  and  consists 
only  of  certain  basic  principles.  Positive  law  has  the 
mission  of  elaborating  the  natural  law  for  man,  through 
practical  reason,  by  concrete  application  to  the  activ- 
ities of  life,  according  to  its  circumstances  and  con- 
ditions. There  are  certain  standards  of  positive  law 
which  are  not  derived  from  Natural  Law,  and  which 
even  conflict  with  it.  This  proposition  is  the  Aris- 
totelian dualism.  The  positive  laws  which  contradict 
the  Natural  Law  are  unjust;  they  have  no  force. 

Neither  Grotius  nor  his  followers  changed  the  fun- 
damental aspects  of  the  Natural  Law  problem.  What 
they  did  was  to  divorce  law  and  theology,  to  elevate 
the  function  of  reason,  to  secularize  law,  and  to  eman- 
cipate it  from  divine  will,  religion,  and  the  Church,  in 
an  effort  to  derive  the  standards  of  law  from  the  pro- 
cesses of  the  human  mind.  Their  effort  was  to  make 
all  positive  law  natural,  thereby  destroying  every 
legitimate  premise  of  pure  history.  Thus,  the  way  was 
made  for  the  revolution. 

This  speculation  marked  the  culmination  of  dualism. 
All  legal  standards  were  derived,  by  a  fettered  logic, 
from  the  reason.  There  did  not  remain  any  necessity 
to  supply  it  with  the  empirical  experience  of  the  exter- 
nal world.  These  standards  were  regarded  as  absolute, 
immutable,  and  universal.  They  were  the  impera- 
tives of  a  light  of  reason  which  could  be  seen  with 


352  THIRD  APPENDIX 

equal  clearness  by  all  men.  They  constituted  the 
limits  of  an  abstract  liberty.  Legislation  (the  perfect, 
unified  form  of  positive  law)  was  thought  to  have  no 
other  object  than  to  express  the  commands  of  reason. 
Positive  law,  however,  does  not  in  all  respects  coincide 
with  the  rational  law;  since,  according  to  the  Kantian 
notion,  man  is  not  only  noumenon  but  also  phenomenon. 
The  phenomenal  man  is  able  to  and  does  effectively 
detach  himself  from  the  dictates  of  reason  which  makes 
law  and  compulsion  necessary.  There  is  a  radical 
imperfection  in  man,  and  this  is  the  definite  cause  of 
dualism.  To  the  extent  that  positive  law,  the  product 
of  the  will  of  the  legislator,  does  not  harmonize  with 
the  law  of  reason  —  and  it  should  harmonize  instinc- 
tively —  it  is  unjust,  and  is  not  law. 

The  eighteenth  century,  taken  in  its  entirety,  held 
the  notion  of  an  eternal,  perfect,  absolute,  and  immu- 
table law;  it  had  an  aversion  for  history;  it  made  a 
distinction  between  the  governing  and  the  governed; 
it  regarded  law  as  the  product  of  reflection;  it  consid- 
ered the  legislative  function  as  belonging  to  experts, 
science,  and  the  governing  classes;  and  it  adhered  to 
the  belief  that  there  was  a  pre-juridical  state  of  nature. 
This  state  of  nature,  on  one  hand,  was  thought  to  have 
been  one  of  happiness  (the  Paradisiacal  state  of  Rous- 
seau); and,  on  the  other,  was  conceived  as  a  condition 
of  violence  (Hobbes,  Kant).  The  state  of  law,  it  was 
thought,  emerged  from  this  antecedent  state  by  way 
of  compact  of  the  people. 

Dualism  thus  reached  its  most  acute  stage.  This 
statement  is  true  in  a  double  sense.  First,  Natural  Law 
no  longer  was  an  aggregate  of  general  principles,  but 
contained  the  concrete  standards  of  the  whole  juridi- 
cal system  even  to  the  last  details.  Second,  Natural 
Law  no  longer  contented  itself  with  being  an  ideal,  but 


PHILOSOPHICAL  POSITION  353 

considered  itself  as  directly  applicable  to  the  affairs 
of  life,  and  declared  its  opposition  to  positive  law;  now 
in  a  temperate  and  pacific  manner  (as  an  intelligent 
despotism) ,  and  again  in  a  violent  form  (by  way  of  revo- 
lution). 

Against  all  this  a  conservative  reaction  set  in  with 
the  beginning  of  the  nineteenth  century.  This  reaction 
came  with  the  fusion  of  Romanticism  (which  had 
already  developed  in  literature,  art,  and  history),  the 
labors  of  the  Romanists  and  Germanists,  and  the  influ- 
ence of  certain  political  economists,  commingled  with 
other  contributory  forces. 

The  Historical  School,  the  schools  of  Schelling  and 
Hegel,  positivism,  and  Christian  theology,  in  a  variety 
of  points  of  attack,  combated  dualism  as  it  had  been 
formulated  in  the  abstract  doctrine  of  Natural  Law  and 
by  revolutionary  liberalism. 

True  it  is  that  certain  factors  in  these  new  doctrines 
persisted,  which  established  a  new  form  of  dualism,  or 
at  least  diminished  the  force  of  the  monistic  conception. 
Among  the  newer  ideas  which  pressed  forward  against 
dualism  in  its  older  form  may  be  mentioned:  the  quid 
mysticum  of  the  conscience  of  the  people;  the  notion  of 
law ;  the  concept  of  law  in  itself,  and  for  itself ;  the  idea 
of  pure  positive  law  which  sets  up  standards  arbitrarily, 
that  is  to  say,  limits  what  is  allowed  and  prohibited; 
the  view  of  the  existence  of  divine  commands ;  dogmatic 
teachings;  and  the  ethical  element.  These  ideas  in 
their  entirety  represent  a  movement  of  protest,  and 
establish,  against  the  older  form  of  dualism,  a  contrast 
which  appears  to  be  irreducible. 

Nevertheless,  all  modern  Philosophy  of  Law  seems  to 
be  inspired  with  the  effort  to  reconcile  both  positions: 
that  is  to  say,  the  historical,  variable,  and  accidental; 
and  the  absolute,  metaphysical,  and  necessary.  Modern 


354  THIRD  APPENDIX 

theories  deny  the  existence  of  a  concretely  definite  ideal : 
thus  Schaffie,  Schuppe,  Kohler,  Stammler,  and  others 
among  the  Germans.  These  theories  contradict  the 
affirmation  of  the  eighteenth  century  (which  Spencer 
nevertheless  supports)  and  seek  to  make  composition 
between  the  relativity  which  was  opposed  by  the  old 
Natural  Law  and  absolute  principles.  This  absolute 
principle  for  Stammler  is  &  priori,  and  according  to 
Merkel  is  d  posteriori,  but  conclusively  apodictic. 

Kohler's  system  is  one  of  these  efforts,  and  of  them 
is  the  most  interesting  on  account  of  the  multiple  bases 
which  support  its  elaboration:  the  positivistic,  historical, 
Hegelian,  and  teleological  elements. 

Kohler  combats  the  idea  of  Natural  Law  without 
reserve.  According  to  him,  there  is  no  law  but  the 
positive  law,  which  manifests  itself  in  every  people,  and 
in  every  age.  He  parallels  the  Historical  School, 
Hegel,  Stahl,  and  even  Bentham;  but  he  does  not 
accept  as  the  radix,  as  the  basis  of  his  system,  the 
mystical  and  transcendental  conception  of  a  "Volks- 
geist,"  or  the  dialectic  process,  or  the  theory  of  divine 
will,  or  the  maximum  of  pure  pleasure.  The  funda- 
mental pantheism  of  his  system  does  not  energize  the 
world  of  law;  but  with  its  elimination  of  the  dialectic 
process  tends,  perhaps,  to  a  quietism  of  the  type  of 
Spinoza.  In  place  of  the  dialectic  process,  Kohler  substi- 
tutes two  elements  presented  by  the  prevailing  thought 
of  his  time,  evolution  and  culture;  or  better,  cultural 
progression.  The  law  is  equally  the  end  and  the  means 
of  this  culture. 

When  the  interrogation  is  put  as  to  what  this  cul- 
ture is,  and  what  part  it  plays  in  his  system,  one  is 
assailed  by  certain  doubts;  since  when  different  pas- 
sages of  his  writings  are  compared,  two  wholly  different 
ideas  appear  to  be  presented.  At  one  time,  he  ascribes 


PHILOSOPHICAL  POSITION  355 

culture  to  the  totality  of  life,  to  the  state  of  a  people, 
in  which  sense  the  term  has  a  formal  meaning,  without 
reference  to  the  content  of  the  idea.  Thus,  we  are 
accustomed  to  speak  of  the  civilization  of  the  Aryans 
or  the  Mexicans,  meaning  to  express  the  idea  of  the 
life  of  the  people  regardless  of  whether  it  is  good  or  bad, 
superior  or  inferior,  in  the  social  scale.  Thus,  also,  one 
speaks  of  the  art,  or  the  language  of  a  people,  as  one  of 
the  aspects  of  its  social  life,  with  reference  to  its  relative 
perfection  or  imperfection,  and  without  furnishing  any 
criterion  for  discrimination.  When  Kohler  says  that 
each  stage  of  civilization  carries  its  own  foundations  of 
cultural  postulates,  he  employs  the  term  in  the  sense 
indicated.  Finally,  if  he  comes  to  the  thought  that  law 
is  an  element  of  this  culture,  then  he  has  reached  the 
stage  of  pure  positivism. 

It  frequently  appears  that,  for  Kohler,  culture  is  not 
the  content  of  the  life  of  a  people,  but  a  certain  element 
more  or  less  vaguely  concrete;  or  at  least,  that  it  is  a 
tendency,  an  approximation,  toward  a  certain  ideal,  or 
perhaps  only  the  unfoldment  of  determinative  influences. 
In  this  sense,  he  speaks  of  the  forces  which  favor  or 
retard  culture,  of  the  necessity  of  the  realization  of  cul- 
ture by  a  people,  of  the  culture  established  by  superior 
men,  etc.20 

This  is,  however,  not  the  only  thing  which  Kohler 
sets  apart  from  a  pure  positivist  relativity,  since  the 
idea  of  evolution  is  the  other  pole  of  his  system.  He 
does  not  accept  the  Darwinian  evolution  with  its  mechani- 
cal play  of  chance,  or,  at  its  best,  with  its  struggle  and 
selection.  Evolution  is  more  than  a  mere  transforma- 
tion; it  signifies  organic  causality.  The  world  is  made 

"  [See,  as  to  the  various  uses  of  this  term,  Rudolf  Eucken,  "Les  Grands 
Courants  de  la  Pens6e  Contemporaine  (translated  from  the  German, 
Paris,  F61ix  Alcan,  1911),  p.  295  et  seq.  —Editor.] 


356  THIRD   APPENDIX 

up  of  eternal  elements  in  organic  unfoldment.  That 
which  is  manifested  in  time  springs  ab  ceterno  from  divine 
being,  of  which  the  universe  is  the  permanent  emanation. 
The  formative  progression  of  the  living  universe  employs 
the  forces  of  nature  in  the  service  of  an  idea  and  an 
immanent  end  displayed  in  the  entire  process  of  history. 
That  this  end  is  for  us  occult  is  of  no  consequence.  Its 
existence  is  revealed  in  the  wonderful  teleology  of  history. 

Finally,  one  finds  in  Kohler's  system  a  third  element 
of  unity  —  the  function  of  law.  Culture  is  something 
different  in  every  age  and  every  country.21  Every 
civilization  has  its  cultural  postulates;  every  national 
spirit  has  its  own  ideals;  and  every  historical  develop- 
ment has  its  progressive  and  repressive  influences.  That 
which  is  good  in  one  place  is  bad  in  another;  that  which 
is  rewarded  here  is  punished  elsewhere.  The  law 
accordingly  manifests  itself  historically,  in  multiple  and 
contradictory  forms.  Its  function  is,  however,  always 
the  same.  Its  mission  is  to  be  responsive  at  every 
moment  to  the  postulate  of  culture,  and  the  impulses 
of  universal  spirit.  It  cannot  determine  d,  priori  the 
intervention  of  accidental  causes,  but  must  spring 
inductively  from  the  empirical  materials  provided  by 
universal  history.  This  method  makes  possible  a  legisla- 
tive policy  [Rechtspolitik]  with  judgments  of  legislative 
values.  Law  has  the  object  of  furthering  and  protecting 
an  evolution  teleologically  adequate  (bestimmungsgemdss) 
to  the  social  organism.  It  is  like  a  watch  which,  though 
keeping  accurate  time,  cannot  indicate  the  hour  for  the 
whole  world. 

The  three  factors  upon  which  the  transcendental 
element  seems  to  be  based  may  be  considered  from 
various  points  of  view  in  Kohler's  system. 

"  [See  Kohler,  "The  Mission  and  Objects  of  Philosophy  of  Law,"  in 
"Illinois  Law  Review,"  Vol.  V,  No.  7  (Feb..  1911),  p.  427.  —Editor.] 


PHILOSOPHICAL  POSITION  357 

First,  it  remains  to  be  determined  if  culture  involves 
an  element  absolutely  material  or  formal,  or,  if  every- 
thing, including  the  Idea  itself,  is  thrown  back  to 
historical  relativity.  From  the  statement  defining  cul- 
ture, that  "the  development  of  the  forces  which  are 
inherent  in  humanity  is  constructive  of  forms  which 
correspond  with  the  destiny  of  this  humanity,"  it 
appears  that  both  elements,  the  forces  and  the  end, 
are  immanent  (Aristotle,  Hegel). 

Again,  evolution,  which  embraces  the  ideals  of  human- 
ity, is  not  a  process  left  to  blind  hazard,  nor  yet  to  the 
eternal  repetition  of  the  identical  cycles  of  the  Greeks. 
But  we  are  not  able  to  say  if  the  way  leads  with  Hegel, 
making  philosophy  a  logical  process;  or  whether  it  is 
with  Schelling,  in  a  regression  of  the  finite  to  the 
absolute — the  equivalent  of  the  creation  and  system  of 
the  world. 

Kohler  does  not  limit  his  notion  of  the  culminative 
point  of  evolution,  as  did  Hegel,  to  the  cultural  forms 
which  are  the  mere  products  of  his  time  (Christianity, 
the  Prussian  State).  An  era  of  positivistic  realism  has 
not  passed  in  vain.  Kohler  believes  in  a  constant 
advancement.  We  learn  from  him  that  the  future 
leads  to  a  union  with  the  Divinity;  but  it  is  not  easy 
to  gather  how  the  separation  occurred,  or  what  will  be 
the  reintegration.  The  over-men,  by  intuitive  percep- 
tion, perhaps,  may  hit  upon  the  upward  path  in  history, 
and  may  be  able  to  mark  out  the  road. 

Finally,  the  function  attributed  to  law  is  subjected 
to  the  oscillations  peculiar  to  the  systems  which  em- 
brace the  elements  of  teleology,  history,  and  human 
liberty.  In  that  law  is  the  product  of  the  culture  of 
each  age,  and,  in  that  it  is  also  able  to  promote  the 
culture  of  the  future,  it  is  necessary  to  discover  within  it 
the  mysterious  seed  of  evolution.  Since  Kohler  rejects 


358  THIRD  APPENDIX 

a  history  derived  d  priori  after  the  Hegelian  method, 
there  is  not  left  to  us  anything  but  an  empirical  process 
of  which  we  are  the  witnesses,  a  development  of  law 
such  as  was  thought  of  by  Savigny;  except,  that  there 
has  been  substituted  for  the  spirit  of  the  people,  the 
abstract  notion  of  culture,  or  even  more  vaguely,  the 
amorphous  conception  of  universal  being.  This,  how- 
ever, is  not  the  view  of  Kohler,  for  whom  the  will  and 
human  initiative  play  an  important  part  in  the  drama 
of  life.  It  is  certain  that  man's  activity  is  simply  an 
irradiation  of  the  universal,  divine  activity;  but  the 
capacity  of  anticipating  the  designs  of  the  Absolute 
being  reserved  only  for  certain  privileged  ones,  culture 
appears  to  be  an  idea  in  the  Platonic  sense ;  and  the  law 
accordingly  directs  its  flight  away  from  the  experi- 
ential world  from  which  Kohler  nevertheless  would  not 
release  it. 

These  are  the  outlines  of  the  effort  of  philosophy, 
to  which  reference  was  previously  made,  to  reconcile 
the  apparently  irreducible  elements  of  dualism.  Where 
Kohler  employs  the  idea  of  culture  and  its  postulates, 
Stammler  substitutes  principles  of  law  conformable 
to  a  just  standard;  but  Stammler's  principles,  on 
account  of  their  Kantian  origin,  take  on  a  formal  char- 
acter and  are,  or  seek  to  be,  simply  a  method  for  the 
discovery  of  the  justice  or  injustice  of  positive  law  as  a 
whole.  In  like  manner,  Stahl  asserts  the  conception 
of  divine  commands;  Krause  posits  a  rational  and 
absolute  end  of  life,  which  is  relative  in  each  concrete 
case;  and  Spencer  relies  upon  an  absolute  morality 
as  the  law  of  the  perfect  man  and  of  life  conformable 
to  nature. 

Kohler  does  not  deny  this  fundamental  analogy,  but 
nevertheless  he  resists  the  substitution.  For  example: 
he  combats  Stammler,  declaring  that  his  theory  of 


PHILOSOPHICAL  POSITION  359 

justice  (richtiges  Recht}  is  a  revival  of  the  old  Natural 
Law,  because  there  is  in  it  a  material  content;  thus, 
where  Stammler  condemns  the  injustice  of  slavery. 
Stammler  aspires  to  arrive  at  an  absolute  standard 
which  shall  have  the  function  of  testing  at  every  moment 
the  justice  or  injustice  of  the  juridical  material  which 
history  alone  can  supply.  He  is  in  accord  with  Kohler 
in  believing  that  law  is  the  cultural  product  of  its  own 
age;  but  he  contends  that  the  legal  standard  is  not 
the  test  of  its  own  justice.  The  standard  of  justice  is 
derived  from  an  absolute  a  prioii  principle,  different, 
however,  from  the  conception  of  the  eighteenth  cen- 
tury, in  this,  that  being  purely  formal  it  cannot  be  the 
material  of  a  positive  code.  According  to  Stammler, 
the  ideal  of  law  is  immanent;  for  Kohler  it  is  trans- 
cendental. 

Kohler  admits  that  there  are  always  definite  stand- 
ards, but  that  they  vary  from  moment  to  moment. 
Each  epoch  has  its  ideal  principles  which  are,  for  the 
time,  standards  of  justice.  These  temporal  ideals  are 
united  fundamentally  as  phases  of  a  unified  process. 

At  times,  Kohler  reverts  to  the  Hegelian  rationalism, 
which  he  seems  to  have  abandoned.  Thus,  he  says, 
that  law  is  the  reason  of  the  infinite,  which  manifests 
itself  in  history,  and  guides  its  course  in  accordance 
with  the  ends  of  the  universal  process.22  Hegel,  how- 
ever, appears  to  take  idea  for  his  starting-point,  while 
Kohler  commences  with  fact,  and  by  means  of  this 
fact  employs  a  positive  method  of  investigation.  In 
Hegel's  system,  one  may  say  that  the  rational  is  real, 
and  according  to  Kohler 's  view,  that  the  real  is  rational. 
Kohler  accepts  positivism  and  the  historical  method 
based  on  a  transcendental  principle;  while  Hegel,  who 

»«  Kohler,  "Wesen  und  Ziele  der  Rechtsphilosophie,"  in  "Archiv  fdr 
Rechts-  und  Wirtschaftsphilosophie,"  October.  1907. 


360  THIRD  APPENDIX 

fell  in  with  the  influence  of  Natural  Law,  seeks  to 
incorporate  in  it  the  empirical  facts  of  history. 

When  Kohler  speaks  of  the  universe  as  manifesta- 
tion of  the  Divine  Spirit,  of  history  as  the  unfoldment 
of  a  force  derived  ab  ceterno,  of  social  and  juridical 
institutions  as  infinitely  variable  forms  of  a  unified 
process;  and  when  he  asserts  that  law  is  the  product 
of  the  cultue  of  each  age,  when  he  justifies  the  phenomena 
of  history,  and  combats  the  Scholastics  as  having  de- 
clared of  absolute  validity  certain  maxims  of  an  eccles- 
iastical and  Christian  origin,  he  seems  to  incline  to  a 
position  of  quietism.  He  appears  to  regard  the  world 
and  the  manifestations  of  social  life  as  an  objective 
process  which  man  may  contemplate  and  analyze,  but 
may  not  alter.  This  is  a  point  of  philosophical  colli- 
sion which  has  precipitated  a  conflict  among  thinkers 
from  the  most  diverse  camps:  thus  Hegel,  Savigny, 
Bastiat,  Spencer,  and  the  epiphenomenalists. 

But,  on  the  other  hand,  Kohler  combats  positivism 
and  the  Historical  School,  when  he  holds  that  even 
though  there  is  not  a  law  absolute  for  all  ages,  yet  there 
does  exist  a  permanent  standard  which  is  the  relation 
between  law  and  culture.  The  standard  is  applicable 
to  a  variable  content  allowing  for  differences  in  the  condi- 
tions which  the  standard  embraces.  Nevertheless,  there 
are  times  when  the  law  diverges  from  culture.23  This 
divergence  is  necessary  in  order  to  maintain  their  gen- 
eral accord.  Moreover,  the  law  is  an  instrument  for  the 
furtherance  of  culture;  and  it  is  necessary  that  it  be 
employed  for  that  end  by  the  application  of  force. 
Behold,  now,  how  the  pendulum  of  Kohler's  reasoning 
swings  toward  a  mediation  which  surpasses  the  artistic, 

"  This  is  the  problem  of  historical  accident,  which,  since  the  time  of 
Hegel,  has  been  a  subject  of  controversy.  Kohler  (like  Marx,  as  against 
Kirchmann  and  Feuerbach)  inclines  to  admit  a  distinction  between  the 
real  (the  rational)  and  the  accidental. 


PHILOSOPHICAL  POSITION  361 

previsory,  and  purely  acceleratory  method  of  a  Comte, 
to  reach  the  abstract  realism  of  the  eighteenth  century 
or  the  finalism  of  Ihering  —  the  two  positions  to  excite 
his  greatest  aversion. 

It  appears  as  if  Kohler  desired  to  harmonize  the 
activity  of  man  with  universal  being,  in  a  form  analogous 
to  that  in  which  Christianity  considered  human  liberty 
to  be  exerted  within  the  plans  of  Providence. 

Although  law,  according  to  Kohler,  is  the  historical 
product  of  the  culture  of  each  age,  yet  he  assigns  to  it  a 
finality.  Whatever  may  be  the  way  in  which  these  two 
ideas  are  reconciled  in  his  system,  there  is  no  doubt 
that  this  teleology  frequently  appears  in  his  writings. 
It  is  not  eudoemonism  (and  Kohler  is  careful  to  accen- 
tuate this  point),  but  yet,  unmistakably,  it  is  law  with 
an  end.  It  has  already  been  pointed  out  that  to  reach 
this  position  Kohler  has,  perhaps,  to  some  extent  aban- 
doned the  Hegelian  standpoint.  Hegel,  likewise,  held 
to  a  teleological  explanation  of  the  universe;  but  it 
was  a  teleology  of  Idea.  In  this  transition  of  viewpoint 
Kohler  approaches  Ihering,  his  greatest  adversary.  The 
only  difference  is  that  Ihering  speaks  of  happiness, 
while  Kohler  substitutes  culture  as  the  finality. 

The  question  nevertheless  recurs,  what  is  the  end  of 
the  law?  Kohler  insists  with  the  greatest  vigor  that 
the  ideal  of  humanity  transcends  the  pleasures  of  the 
senses,  and  that  it  towers  over  earthly  existence  and  the 
possessions  that  go  with  it.  He  inclines  toward  a  Car- 
tesian spiritualism.  He  looks  with  a  certain  disdain 
on  the  inventor  of  the  distaff,  and  the  discoverer  of 
sterilized  milk,  who  seek  to  promote  the  well-being  of 
life  by  providing  improved  forms  of  food  or  clothing. 
While  such  efforts  are  good,  yet  they  do  not  attain  the 
splendid  ideal  disclosed  in  such  a  creation  as  Tristan. 
There  is  evident  here,  therefore,  a  standard  of  valoriza- 


362  THIRD  APPENDIX 

tion,  when  he  contrasts  in  a  somewhat  Puritanical  sense 
the  grosser  things  of  life  with  an  elevated  ideal.  It  is 
not  easy  to  understand  this  repugnance  for  the  material 
things  of  life,  or  to  see  why  the  winning  of  bread  may 
not  be  in  its  own  way  as  deserving  of  praise  as  the  Vic- 
tory of  Samothrace.  In  any  event  it  appears,  according 
to  Kohler,  to  be  certain,  that  the  ideal  does  not  rest 
on  the  method  or  the  spirit  of  an  activity,  and  that  it 
does  not  invest  a  mere  method  or  form  of  activity  with 
a  noble  or  sublime  character.  This  character  is  deter- 
mined by  the  content  of  the  activity  itself.  The  ideal  of 
life  has  always  for  Kohler  a  definite  substantive  nature. 
He  acknowledges  that  each  epoch  has  had  its  own  ideals; 
but  here  an  d  priori  principle  arises  to  declare  some  of 
these  ideals  more  elevated  and  more  refined  than  others.24 
Kohler  thinks  that  modern  culture  is  entirely  the  pro- 
duct of  Christianity,26  which  brought  about,  he  says,  a 
new  conception  of  the  world.  It  moreover  appears  that 
in  arriving  at  the  Christian  point  of  view  of  the  Middle 
Ages,  he  gives  to  Christianity  a  special  meaning,  attri- 
buting to  it  a  renouncement  of  the  world  and  the  tor- 
mented pessimism  of  a  Calvin;  and  he  looks  away  for 
the  moment  from  the  placid  optimism  of  St.  Clement, 
St.  Gregory  of  Nice,  San  Juan  de  la  Cruz,  St.  Francis, 
and  St.  Theresa.26 

**  Certainly  a  more  exalted  standard.  "What  evidence  would  there 
be,"  he  asks,  "of  our  efforts  and  struggles  since  the  thousands  of  years 
of  the  existence  of  humanity,  if  it  were  not  for  the  monuments  of  the  arts 
and  sciences?"  This  calls  forth  to  him  the  verse  of  Leopardi:  "Dimmi, 
o  luna:  a  che  vale  —  Al  pastor  la  sua  vita?"  ("Die  Entwicklung  im 
Recht,"  in  "Grunhut's  Zeitschrift,"  XIV  (1887).) 

*«  He  refers,  obviously,  to  European  civilization  and  the  civilizations 
influenced  by  it;  excluding,  for  example,  the  Japanese  culture. 

«  Goethe  and  Hegel  describe  the  Middle  Ages  as  an  epoch  of  gloom, 
austerity,  and  obscurity,  which  has  its  similarities  among  the  Cynics, 
and  the  ascetics  of  Thebes.  According  to  Hegel,  art  ended  with  the 
Greeks,  and  while  in  the  Middle  Ages  the  background  of  creation  was 
limitless,  yet  it  lacked  adequate  form.  This  conception  of  the  Middle 
Ages  is  today  a  matter  of  deep  controversy.  In  this  connection,  it  is 


PHILOSOPHICAL  POSITION  363 

It  is  a  matter  of  uncertainty  if  the  ideal  of  which 
Kohler  speaks  is  within  us  or  external.  At  times  he 
seems  to  incline  to  the  position  that  while  science  takes 
as  its  standard  the  reality  of  the  objective  world,  that 
the  transcendental  standard  of  ideality  does  not  reside 
in  the  law,  in  morals,  in  language,  or  in  the  arts.  This 
peculiar  and  somewhat  Cartesian  view  assigns  to  science 
a  privileged  position.  By  itself  it  would  leave  without 
explanation  another  notion  from  which  Kohler  draws  a 
definite  ideal  of  life.  This  conception  of  the  nature  of 
science  approximates  somewhat  the  position  of  Lange, 
according  to  whom,  science  begins  and  ends  with  obser- 
vation, with  the  study  of  particulars.  He  looks  beyond 
science  for  that  which  transcends  the  objective  world, 
and  which  is  necessary  to  make  complete  the  knowledge 
of  life;  thus,  for  example,  the  aesthetic  ideal,  the  moral 
ideal,  religion. 

The  cultural  values  which  law  has  the  mission  to  pro- 
mote, according  to  Kohler,  are  of  various  kinds:  thus 
knowledge  (science),  contemplation  (the  arts),  the  meta- 
physical sense  (religion),  and  force  (dominion  of  the 
world).  He  states  these  elements  without  superior  rela- 
tion or  preference  among  themselves. 

Kohler's  juridical  ideal  is  of  the  kind  that  we  may 
designate  as  an  Hegelian  aristocracy.  Law  which  is 
intended  for  the  people  should  not  be  plebeian.  It 
must  be  permanently  ideal  and  educative.  It  cannot 
draw  its  inspiration  from  the  indolent  contentment  of 
the  masses.  It  must  precede  evolution,  carrying  aloft 
the  torch  of  culture. 

enough  to  mention  the  care  devoted  to  the  human  body,  the  tourna- 
ments, the  richness  and  gayety  of  Venice  and  Florence  in  the  fourteenth 
century,  the  complexity  of  municipal  life,  the  easy  form  of  the  architec- 
ture and  the  agreeable  French  sculpture  of  the  thirteenth  century. 
Dante  is  melancholy  in  the  Inferno,  and  so,  likewise,  were  the  Cynics. 
There  is,  however,  nothing  of  sadness  in  St.  Francis  of  Assisi,  or  Petrarch. 
Similar  observations  must  be  made  of  the  Renascence  as  favorable 
to  terrestrial  things,  if  one  thinks  of  Luther,  Calvin,  or  Savonarola. 


364  THIRD  APPENDIX 

He  tends  to  draw  away  from  mere  reason,  reflection, 
and  authority,  and  appears  to  submit  the  problem  of 
law  to  the  province  of  feeling,  intuition,  and  the  afflatus 
of  creation;  from  which  viewpoint  he  arises  to  the  con- 
cept of  the  Superman,  and  his  function  in  the  world's 
history. 

The  opposition  between  heaven  and  earth  finds  its 
counterpart  for  Kohler  in  the  distinction  between  superior 
entities  and  the  masses.  The  consciousness  of  the  people 
is  dualistic  as  compared  to  the  insight  into  life  of  the 
Superman.  It  remains  to  determine  upon  what  these 
ideas  rest. 

Every  man  is  the  child  of  his  age,  according  to  Hegel. 
The  distinction  between  the  superior  ones  and  the  mul- 
titude is  simply  a  phase  or  aspect,  and  rests  on  a  full 
penetration  of  the  antecedent  and  consequent  condi- 
tions. It  is  not  the  function  of  culture  to  pull  up  by  the 
roots  from  the  common  people,  personalities  of  genius 
who  shall  thenceforward  remain  apart  from  the  inferior 
elements  of  life;  but  rather  to  elevate  popular  con- 
sciousness, and  cause  it  to  generate  superior  individuals 
who  recognize  themselves  as  and  are  a  part  and  products 
of  a  general  human  whole.  The  consciousness  of  the 
great  ones  is  only  the  reflex  form  of  popular  conscious- 
ness. Culture,  like  language,  is  a  product  of  the  social 
community,  in  the  formation  of  which  the  common  people 
and  the  superior  entities  exert  a  common  effort,  even 
though  in  different  ways.  The  genius  and  the  multi- 
tude alike  are  the  instruments  of  universal  reason. 

It  does  not  appear  to  be  possible  here  to  compose  the 
viewpoints  of  Kohler  and  Hegel.  In  the  various  prob- 
lems which  are  connected  with  this  notion  (reason  and 
feeling,  reflection  and  spontaneity,  Superman  and  the 
masses,  etc.),  the  solutions  to  which  Kohler  inclines 
perhaps  require  other  premises. 


PHILOSOPHICAL  POSITION  365 

The  emancipation  from  the  locked-in  fixedness  of 
rationalism,  and  from  regulated  social  shackles,  is 
represented  by  the  movement  of  enlightenment  (Auj 'kid- 
rung).  It  gave  free  play  to  the  expansive  force  of  indi- 
vidual thought,  it  produced  a  respect  for  great  accom- 
plishment, and  gave  a  value  to  intuitional  power  and 
the  internal  vision.  It  inspired  a  depreciation  of  Philis- 
tinism, and  the  inconsequential  littleness  of  political 
life,  and  sought  refuge  in  the  life  within,  in  science  and 
literature,  and  in  the  simplicity  of  nature.  This  move- 
ment culminated  in  German  humanism,  in  the  philoso- 
phy of  faith  (Hamann,  Herder,  Jacobi),  and  in  the 
completely  romantic  development  of  thought  of  the  first 
third  of  the  past  century. 

It  cannot  be  doubted  that,  as  against  this  general 
current,  there  were  opposing  forces  in  motion.  The  His- 
torical School  elevated  the  value  of  customary  law,  and 
considered  it  as  derived  immediately  from  the  con- 
sciousness of  the  people,  as  the  single  fountain  of  all 
legal  rules.  The  same  Romanticism,  however,  which 
was  represented  by  the  Historical  School,  sought,  on  the 
other  hand,  to  break  through  social  trammels,  conven- 
tionality, and  external  considerations.  It  raised  up  a 
pedestal  to  genius  and  therefore  separated  it  from  the 
masses.  Recognition  of  a  principle  of  superiority  and 
inferiority  among  the  people,  in  truth,  renders  the 
superior  ones  exempt  from  the  rules  which  govern  the 
common  people,  attributing  to  them  a  personal  standard 
of  law  and  morals,  or  absolves  them  altogether  from  the 
restraint  of  legal  rules;  but  if  we  go  a  step  further  and 
say  that  the  creations  of  men  of  genius  descend,  with 
greater  or  less  speed,  or  with  more  or  less  perfection,  to 
the  multitude,  then  we  arrive  at  a  government  of  the 
learned,  and  approach  an  enlightened  despotism,  or  a 
reign  of  doctrinalism. 


366  THIRD  APPENDIX 

The  notion  of  considering  the  genius  as  the  social 
product  of  an  age,  reducing  his  function  to  the  expression 
of  that  which  is  in  any  manner  already  present  in  the 
consciousness  of  the  masses  (Hegel),  harmonizes  with  the 
idea  which  regards  superior  talent  as  the  highest  point 
of  an  indefinite  series  of  social  capacities  in  which 
humanity  finds,  by  progressive  steps  up  to  the  highest, 
a  realization  of  its  conceptions  in  a  form  more  imme- 
diate and  less  amorphous  (Giner  de  los  Rios).  This  is 
not,  however,  the  view  of  Kohler.  His  position  here  is  a 
reminiscence  of  the  heroes  of  Carlyle  or  the  "hommes 
superieurs"  of  Renan  notwithstanding  the  attenuations 
which  the  age  imposes  on  this  romantic  amoralism.27 

Considered  as  a  whole,  the  position  with  the  closest 
affinity  to  Kohler's  is  probably  that  of  Nietzsche.  He 
speaks  frequently  of  Supermen.  Law  has  the  mission 
of  favoring  the  expression  of  superior  talent  and  of  giv- 
ing to  it  a  wide  scope  of  activity  which  its  social  func- 
tion requires.  A  people  is  not  great  because  of  the 
happiness  of  the  greater  part  of  its  constituent  indi- 
viduals, but  only  when  it  has  men  of  genius  who  open 
up  new  avenues  of  culture,  even  though  otherwise  it  is 
deep  in  misery.  Above  all,  the  Superman  is  for  Kohler 
the  moving  factor  of  culture;  and  culture  predominates 
in  artistic  creation,  invention,  and  great  ideas.28 

If  it  is  sought  to  inquire  of  what  the  superiority  of 

17  "We  are  removed,  today,  from  the  historical  views  of  the  good 
Schlosser  who  would  j  udge  of  great  men  according  to  the  cathechism  .  ,  . 
just  as  if  man  had  no  other  mission  than  to  live  an  honorable  and  orderly 
life,  and  as  if  there  were  no  distinction  between  a  superior  individual 
who  blazes  new  paths  and  a  village  school-master,  than  that  the  greater 
one  made  more  conversation  about  himself  than  the  other."  —  Kohler, 
"Aus  Kultur  und  Leben,"  Berlin,  1904,  p.  6. 

"  It  is  to  be  noted,  that  in  Kohler's  opinion  the  fundamental  idea 
of  the  system  of  Nietzsche  is  Hegelian;  and  that  his  merit  lies  in 
considering  personality  not  as  having  an  individual  value,  but  in  that 
personal  activity  has  a  significance  for  history.  See  "Moderne  Rechts- 
probleme,"  p.  10  et  seq. 


PHILOSOPHICAL  POSITION  367 

men  of  genius  consists,  as  to  what  is  its  origin,  its 
content,  and  its  scope,  in  order  that  we  may  be  able  to 
trace  the  dividing  line  between  abnormal  capacity  and 
insanity  and  deal  with  genius  according  to  a  standard 
of  excellence,  we  may  note  certain  differences  of  idea 
between  Kohler  and  Nietzsche. 

For  Nietzsche,  the  Superman  comes  from  the  midst  of 
the  people  in  a  kind  of  Darwinian  evolution.  According 
to  Kohler,  the  Superman  partakes  to  a  greater  or  less 
extent  of  the  character  of  his  people,  because  other- 
wise he  would  find  no  reflection  in  the  element  of  his 
origin;  but  he  arises  from  the  mass  according  to  a  plan 
which  appears  to  be  of  divine  pre-arrangement.  The 
Superman  discovers  by  an  intuitional  process  the  high- 
ways of  culture.  He  is  the  guide;  but  more  than  this, 
he  is  even  the  people  itself,  and  is  therefore  the  beginning 
and  the  end  of  the  law. 

Since,  however,  it  is  presupposed  that  there  is  a  road 
which  culture  is  to  follow  and  a  destination  to  be  arrived 
at,  it  appears  that  Kohler's  notion  of  the  Superman  is 
not  the  same  as  Nietzsche's.  Kohler's  point  of  view  is 
rather  reminiscent  of  the  system  of  Plato.  According 
to  Plato,  the  superior  man  is  one  who  looks  upon  the 
pure  light  of  Idea,  the  essential  and  immutable  reality, 
who  penetrates  with  a  synthetic  vision  the  realm  of 
truth,  laying  aside  material  feelings  and  sensations, 
and,  divorcing  himself  from  the  sensible  world,  raises 
himself  up  to  a  semi-divine  life  in  which  perception  of, 
and  participation  in,  the  pleasures  and  pains  of  the 
external  world  have  their  proper  place.  Placing  him 
at  the  head  of  the  State  he  ascribes  to  the  Superman  a 
nature  superior  to  the  spiritual  level  of  the  masses. 
Kohler,  contrary  to  Nietzsche,  allows  to  his  Superman 
a  love  of  his  neighbor  which  he  regards  consistent  w'th 
a  love  of  the  humanity  of  the  future,  and  a  struggle  for 


368  THIRD  APPENDIX 

the  ideal.  He  would  have  him  exert  his  efforts  within 
the  law  and  subject  to  political  order.  Those  anarchis- 
tic spirits  who  do  nothing  except  to  destroy,  he  looks 
upon  with  disfavor.  Finally,  Kohler  is  apart  from 
Nietzsche  where  the  latter  considers  Christianity  as  the 
morality  of  decadence.  Kohler  says  that  the  renuncia- 
tion of  the  world  was  not  an  essential  principle,  but  only 
a  temporary,  evolutional  phase  necessary  in  its  age. 

There  is  a  certain  tendency  in  Kohler's  Superman 
to  dominate  the  course  of  history,  to  order  life  and 
the  world,  and  to  employ  violence  according  to  the 
exigencies  of  his  ideal  and  in  favor  of  the  objects  of 
culture.  (Compare,  by  way  of  example,  the  function 
attributed  to  military  chieftainship.) 

After  the  manner  of  Hegel',  Kohler  looks  upon  the 
State  as  the  realization  of  the  ethical  ideal.  There  is, 
however,  a  difference.  Hegel  builds  up  the  State  by  a 
logical  process  through  the  controlling  force  of  the 
ethos  (family,  civil  society,  State)  as  the  last  degree 
of  the  objectivation  of  the  spirit  which  unites  in  law 
and  morality.  Kohler  places  historical  experience  at 
the  base  of  his  construction,  and  directly  justifies  the 
products  of  reality  by  metaphysical  principles. 

For  both  thinkers,  the  State  is  the  divine  spirit  which 
unfolds  and  organizes  itself  in  the  objective  world. 
Each  uses  the  ideas  of  his  age  as  an  d,  priori  basis  of 
his  system.  Hegel  takes  constructive  rationalism  and 
the  principles  of  Natural  Law,  which,  by  means  of  a 
logical  process,  cause  him  to  fall  in  with  the  bureau- 
cratic monarchy  of  his  country  and  his  age.  Kohler 
starts  with  an  analysis  of  the  empirico-historical  pro- 
cess and  the  principle  of  evolution,  which  justify  in  his 
system  all  the  social  phenomena  which  are  the  result 
of  a  living  reality,  so  far  as  they  are  modes  of  realizing 
the  cultural  forces  which  are  manifested  in  universal 
history. 


PHILOSOPHICAL  POSITION  369 

History  and  comparative  law  demonstrate  to  us  a 
transition  among  peoples  from  totemism  to  sachemism, 
then  to  military  chieftainship,  and  at  last,  to  monarchy, 
etc.;  but  this  process  does  not  appear  everywhere 
under  the  same  conditions.  It  is  a  movement  which 
depends  on  a  variety  of  factors,  among  which  the  spirit 
of  the  people  is  highly  important. 

Kohler,  however,  encounters  certain  facts  which 
appear  to  have  a  value  for  universal  history;  for  ex- 
ample, that  mankind  has  developed  out  of  social  groups 
more  or  less  differentiated,  through  a  cultural  fer- 
ment by  which  it  has  detached  the  personality  of  the 
individual  and  gained  his  liberty.  He  accordingly  com- 
bats the  principle  which  serves  as  basis  for  the  social 
contract. 

Civilization  is  able  to  unfold  only  in  the  womb  of 
such  communities.  Since,  however,  there  are  forces 
opposed  to  and  destructive  of  civilization,  and  it  is 
necessary  to  combat  and  overcome  these  hostile  inter- 
ferences, the  State  must  be  an  authoritative  entity 
of  power  and  permanence. 

What  value  does  Kohler  concede  to  the  element  of 
judgment,  and  what  value  does  he  attribute  to  the 
element  of  spontaneity  in  the  State?  If  one  is  to 
adventure  an  answer,  it  will  be  in  favor  of  the  thought 
element  over  that  of  the  unwilled  element. 

There  can  be  no  doubt  that  Kohler  admits  a  semi- 
conscious and  customary  development  of  legal  life 
among  the  masses  of  the  people;  but  taking  a  teleo- 
logical  view  of  the  State,  this  legal  unfoldment  appears 
to  him  to  be  slow,  weak,  and  imperfect;  and  he  prefers 
the  initiative  of  legislation  on  which  he  places  all  his 
faith.  It  is  necessary  at  every  moment  to  regard  the 
ideals  of  culture.  These  ideals  are  revealed  partly  in 
history  itself,  and  partly  outside  of  it,  by  means  of 


370  THIRD  APPENDIX 

superhuman  intuition.  When  the  directing  spirits, 
the  Supermen,  and  the  legislators  have  once  attained 
a  consciousness  of  this  ideal,  they  must  establish  it 
by  all  the  means  within  their  control  even  to  the  severest 
violence.  In  this  action  there  is  a  limit  which  marks 
the  appropriate  domain  of  the  individual,  in  which 
the  activity  of  the  State  is  excluded.  This  individual 
province  is  not,  according  to  Kohler,  an  absolute  prin- 
ciple like  the  so-called  "rights  of  humanity,"  but  has 
relative  limitations,  determined  historically  and  cir- 
cumscribed in  the  last  analysis  by  the  supreme  standard 
of  the  exigencies  of  culture. 

At  this  point  Kohler  perhaps  somewhat  moves  away 
from  the  quietistic  notion  of  Hegel  that  "philosophy 
always  comes  too  late"  to  rule  the  world. 

At  the  same  time,  Kohler  takes  a  teleological  position 
with  reference  to  the  State,  like  Plato,  Aristotle,  or  in 
the  sense  of  the  liberalism  of  the  eighteenth  century, 
and  in  the  naturalistic  view,  of  Hegel,  as  the  product 
of  the  evolution  of  the  All. 

Sometimes,  and  especially  when  examining  the 
historical  forms  of  the  State,  Kohler  reverts  to  the 
formula  of  Schelling  —  the  State  is  a  natural  thing, 
like  a  plant  —  and  even  to  Lamarck  and  Darwin  — 
the  causal  notion  of  struggle,  selection,  adaptation,  hered- 
ity, etc.  The  characteristic  feature  of  Kohler's  posi- 
tion is  unmistakably  the  desire  to  fuse  together  the 
complex  elements  of  modern  science. 

He  does  not,  however,  align  himself  with  Aristotle, 
or  with  Grotius,  or  with  the  eighteenth  century  in 
conceiving  the  State  as  an  organization  designed  for 
the  ends  of  individuals,  or  as  a  product  of  the  will. 
Perhaps,  he  rather  approximates  the  position  of  Plato 
who  regarded  the  State  as  an  organism ;  with  this  dif- 
erence,  that  Kohler  substitutes  Culture  for  the  Idea  of 


PHILOSOPHICAL   POSITION  371 

Plato's  sytem,  in  the  service  of  which  the  individual  and 
the  State  contribute  alike.  Kohler's  inclination  toward 
a  sophocratic  regime  is  also  suggestive  of  Plato,  although 
Kohler  does  not  accentuate  as  strongly  as  Plato  the 
secondary  place  assigned  to  the  amorphous  social  aggre- 
gate. The  Greek  philosopher  elevated  the  importance 
of  the  ruler  over  the  law,  while  Kohler  places  more  faith 
in  the  law  than  in  the  function  of  the  law-maker  or  the 
judge. 

This  preference  for  the  law  does  not  arise  from  a 
rationalistic  and  universalistic  turn  of  thought  such 
as  prevailed  in  the  eighteenth  century;  it  does  not 
proceed  either  from  a  notion  of  legal  infallibility;  and 
it  also  is  not  based  on  any  distrust  of  those  who  exercise 
governmental  power.  It  is  predicated  rather  on  the 
belief  that  the  law  is  the  most  perfect  instrument, 
and  above  all,  the  most  expeditious  means  of  minis- 
tering to  the  complex  necessities  of  modern  life. 

Kohler,  like  the  Greeks  and  Hegel,  does  not  attempt 
a  justification  of  the  State.  History  presents  the  State 
to  us  objectively,  even  though  in  relative  and  variable 
form.  We  know  on  d,  priori  grounds  that  it  is  the 
great  instrument  promotive  of  civilization.  Within 
the  State  alone  is  it  possible  for  humanity  to  find  the 
road  on  which  its  ends  are  attained.  At  this  point  caus- 
ality and  finalism  amalgamate. 

With  reference  to  the  problem  of  the  extension 
of  the  scope  of  the  State,  it  is  sufficient  to  say  that 
Kohler  combats  the  eighteenth  century  notion  of  the 
Rechtsstaat,  and  on  the  contrary  assigns  to  the 
State  the  function  of  promoting  human  culture  within 
a  definite  territory  and  by  means  of  its  own  proper 
laws. 

In  a  determination  of  the  sphere  of  the  State's  activity, 
Kohler  occupies  a  middle  ground  (as  with  reference  to 


372  THIRD  APPENDIX 

his  notion  of  law)  between  those  who  seek  an  absolute 
principle,  and  those  who  look  to  historical  relativity. 
Perhaps,  in  this  concrete  position  Kohler  assimilates 
Merkel  more  than  any  other  thinker,  although  he  com- 
bats his  fundamental  idea  of  the  general  theory  of  law. 
Merkel  contends  that  the  State  has  the  function  of 
maintaining  a  juridical  system  as  the  necessary  agency 
for  the  guaranty  of  such  interests  as  it  may  at  the  time 
regard  as  of  importance.  The  interests  which  are  held 
to  be  important  enough  to  receive  protection  may  be 
altered  from  one  moment  to  another  by  the  State. 
According  to  Merkel,  those  interests  obtain  protection 
which  become  dominant,  those  which  have  the  force  to 
compel  protection.  Kohler  asserts  here  an  absolute 
element,  culture,  which  is  determinative  for  every  age 
and  every  country  as  to  what  conditions  in  life  must  be 
protected. 

Compulsion  seems  to  be  for  Kohler  an  essential  char- 
acteristic of  the  law.  He  defines  law  as  compulsory 
social  regulation  of  human  relations ;  and  adds  that  pre- 
cisely because  it  is  social  compulsion  (Zwangsordnung), 
it  differs  from  ethics  and  morals  with  which,  in  the 
earliest  historical  times,  it  had  been  confused. 

While  it  is  clear  that  the  idea  of  force  raises  a  critical 
question  which  runs  through  modern  juridical  theory, 
it  is  not  easy  to  determine  what  position  it  occupies  in 
the  system  of  Kohler. 

With  reference  to  criminal  law,  Kohler  generally 
aligns  himself  with  the  school  accustomed  to  call  itself 
Classical,  as  against  the  Positivist  School  and  the  modern 
theories.29 

This  is  especially  true  of  his  consideration  of  the 

"See  especially  "Moderne  Rechtsprobleme,"  p.  19  et  seq.,  and  "Ein- 
fUhrung  in  die  Rechtswissenschaft,"  2nd  ed.,  p.  148  et  seq,,  where  the 
notes,  on  which  his  views  are  chiefly  based,  may  be  found. 


PHILOSOPHICAL  POSITION  373 

problem  of  freedom  of  will.  Leaving  behind,  for  the 
moment,  his  pantheistic  position,  and  taking  a  place 
within  the  domain  of  those  deists  who  are  concerned  with 
the  relation  of  divine  omniscience  to  human  liberty,  he 
regards  as  senseless  the  supposed  incompatibility  between 
them.  Temporal  evolution  is  real,  although  relative; 
and  by  finding  God  at  the  summit  of  this  evolution,  the 
past,  the  present,  and  the  future,  he  says,  fuse  into  an 
indivisible  unity. 

In  like  manner,  he  seeks  to  resolve  the  conflict  between 
universal  causality  and  human  liberty;  since  he  asserts 
from  the  same  point  of  view,  that  God,  in  creating  human 
liberty  and  will,  has,  on  one  hand,  left  open  the  diversity 
of  possible  choices  which  human  liberty  presupposes; 
and,  on  the  other  hand,  has  established  alongside  of 
these  human  forces  of  indeterminate  direction,  factors 
of  another  sort  to  secure,  by  preponderating  over  them, 
a  final  result  conformable  to  the  divine  plan.  Man 
and  not  God  is  responsible  for  evil.  Evil  arises  from  a 
plurality  of  phenomena,  and  not  from  the  promordial 
essence. 

The  regularity  of  human  acts  established  by  statistics 
argues  nothing  against  human  liberty,  according  to  Kohler. 
Even  if  blind  chance  has  its  laws,  why  should  not  human 
acts  have  them  also,  that  do  not  proceed  from  mere 
indeterminism,  but  from  forces  influenced  by  motive 
and  character. 

Finally,  Kohler  regards  human  liberty  as  compatible 
with :  (a)  the  law  of  causality,  because  the  position  of 
the  individual  being  that  of  an  autonomous  agent, 
there  is  an  explanation  in  each  case  of  the  "if"  of  an 
act,  but  the  "why"  is  a  thing  which  does  not  fall  within 
the  rules  of  causation;  (b)  with  the  conservation  of 
energy,  because  it  embraces  volitional  facts,  whatever 
may  be  their  content;  and  (c)  with  the  physiology  of 


374  THIRD  APPENDIX 

the  brain,  because  it  is  not  the  only  factor  in  the 
phenomena  of  sensation. 

According  to  Kohler,  liberty  of  will  is  cognized  by 
internal  experience.  Whatever  may  be  the  influence  of 
motives  and  character,  every  one  feels  within  himself 
that  they  are  not  the  sole  forces  productive  of  will  (as 
was  thought  by  Spinoza  and  Schopenhauer);  but  that 
an  additional  element  intervenes —  an  internal  resolution. 

He  proclaims  the  primacy  of  the  will  over  intelli- 
gence in  the  sense  of  Saint  Paul  and  Saint  Augustine. 
Motives  may  in  part  influence  the  will;  but  in  the  last 
analysis  the  will  assigns  to  motives  their  value  either 
to  enlarge  or  diminish  their  force.  The  will  is  substan- 
tive. There  are  men  of  strong  will,  and  others  of  weak 
will.  The  volitional  function  is  not  the  product  of  com- 
mingled feelings  (Gefuhle).  There  is  an  organ  of  the  will 
which  is  something  more  than  a  container  for  the  co- 
ordination of  feelings.  I 

In  opposition  to  determinism,  Kohler  employs  the 
arguments  of  the  Scholastics.  We  are  not  constrained 
from  within  by  the  formative  energies  which  reside  in 
each  of  us.  Internal  motives  do  not  convert  the  soul 
into  a  machine.  It  is  necessary  to  distinguish  libertas  a 
coactione  and  libertas  a  necessitate.  The  latter  signifies 
that,  given  all  the  conditions,  one  is  able  to  do  or  not  to 
do.  Responsibility  is  based,  not  as  is  supposed  by  the 
deterministic  view,  on  a  judgment  of  the  value  of  the 
act,  but  on  the  possibility  of  acting  one  way  or  another. 
Otherwise  it  would  not  be  possible  to  perceive  why  an 
act  should  be  limited  to  a  moral  valuation,  and  yet  not 
include  an  intellectual  appraisement;  in  which  case  the 
acts  of  the  insane  would  be  subject  to  condemnation. 

Merkel  denies  liberty  of  the  will,  but  thinks  that  the 
will  may  have  an  ethical  valuation;  because  in  ethics, 
as  in  aesthetics,  it  is  of  no  consequence  whether  the  will 


PHILOSOPHICAL   POSITION  375 

may  exert  itself  in  different  ways  or  not.30  Kohler 
argues  against  him,  holding  that  in  aesthetics  neither  the 
actor  nor  the  action  is  of  consequence,  but  the  result, 
the  realized  idea,  is  the  important  thing;  while  ethics 
deals  with  the  subject  of  whom  it  is  necessary  that 
there  be  a  possibility  of  an  internal  (although  it  may  be 
an  ineffective)  deliberation.  Merkel  overlooks,  in  Koh- 
ler's  judgment,  the  fact  that  character  is  a  matter  of 
education;  that  there  are  times  when  there  may  be  an 
election  between  a  variety  of  good  acts,  according  to 
the  occasion  and  the  circumstance,  or  an  election  as  to 
the  method  and  form  of  their  realization;  and  that, 
finally,  such  acts  may  be  accompanied  by  a  diversity  of 
feelings,  such  as  the  feeling  of  modesty,  or  of  vanity. 
We  would  not  be  able,  he  says,  to  assign  to  a  madman 
who  had  a  mania  for  saving  shipwrecked  persons  any 
higher  moral  attributes  than  to  a  Saint  Bernard  dog. 

Human  will  is  neither  subjected  to  the  determinism 
of  motives  and  character  nor  to  the  indifferent  equilib- 
rium of  an  absolute  indeterminism.  It  holds  a  middle 
position  between  certain  extreme  limits,  and  within 
these  limits  is  a  thing  of  substance. 

Kohler  appears  to  accept  the  Scholastic  point  of 
view  with  reference  to  the  limits  between  the  immoral 
and  the  unjust.  Law,  he  says,  does  not  relate  to  inter- 
nal motives,  but  to  external  acts  although  these  acts 
are  simply  manifestations  of  the  will. 

What  human  acts  fall  within  the  province  of  penal 
law?  According  to  Kohler,  in  order  that  an  act  may 
be  punished  as  a  delict,  it  is  necessary  that  some  human 
interest  be  infringed,  and  that  the  other  remedies  of 

10  Because,  for  example,  we  would  not  have  esteemed  the  Samaritan 
less,  even  though  we  should  not  be  able  to  imagine  that  he  could  have 
acted  otherwise.  On  the  contrary,  we  would  respect  him  all  the  more 
if  we  should  believe  his  morality  to  be  so  firm  as  to  exclude  the  possi- 
bility of  acting  in  any  other  way. 


376  THIRD  APPENDIX 

reaction  which  society  employs  to  restrain  such  an  act, 
or  to  make  it  inoperable,  should  be  ineffective.  The 
interests  which  the  penal  law  has  to  protect  vary 
according  to  the  age,  and  according  to  social  conditions. 

In  all  cases,  however,  punishment  is  the  ultimate 
remedy  applicable  solely  on  account  of  the  impotence 
of  other  remedies,  and  especially  by  reason  of  lack  of 
competence  of  the  civil  law. 

The  theory  which  supposes  that  in  all  cases  there 
is  a  prohibitive  standard  against  certain  kinds  of  acts, 
and  a  threat  of  punishment  for  the  offender,  is  not 
admissible  according  to  Kohler,  except  in  the  domain 
of  police  regulations;  where,  for  example,  it  may  be 
required  that  a  coach  shall  not  turn  to  the  right,  or  to 
the  left.  Violation  of  such  a  regulation  does  not  touch 
any  social  interest.  Such  regulations  are  purely  arbi- 
trary, and  established  for  the  maintenance  of  social 
order. 

The  purpose  of  penal  law,  according  to  Kohler,  is 
retribution,  which  re-establishes,  by  means  of  the  inflic- 
tion of  suffering,  the  order  which  has  been  disturbed. 
If  the  standpoint  of  retribution  is  departed  from,  penal 
law  is  transformed  into  a  system  of  police  tutelage, 
or  a  kind  of  utilitarian  security,  or  into  a  pedagogical 
organization.  Such  departures  have  nothing  to  do 
with  justice. 

Kohler  therefore  arrives  at  an  absolute  theory,  but 
he  attenuates  this  absolutism  in  various  ways: 

1.  The  intensity  of  retributive  punishment  is  modi- 
fied according  to  the  postulates  of  the  culture  of  the 
age; 

2.  Although  not  a  part  of  the  retributive  theory, 
two  other  conceptions  are  found  in    connection  with 
it:    intimidation  and    correction,  both  of   which  must 
accompany  punishment; 


PHILOSOPHICAL   POSITION  377 

3.  Because  he  accepts  the  exigent  cultural  methods 
common  to  nearly  all  schools  of  thought,  and  requires 
of  the  State  that  it  shall  further  those  conditions  which 
favor  a  sane  and  noble  social  life,  contributing  to  the 
prevention  of  criminality.  These  conditions  are:  edu- 
cation in  all  its  phases,  especially  the  training  of  charac- 
ter ;  the  cultivation  of  religion  because  of  its  great  moral 
influence;  encouragement  of  the  associational  impulse 
(esprit  de  corps);  efforts  against  alcoholism;  making 
it  easy  to  obtain  work;  measures  of  preventive  security 
(including  deprivation  of  liberty)  against  those  delin- 
quents who  after  full  punishment  are  not  reformed  or 
who  are  incorrigible;  tutelage  over  convicts  after  sen- 
tence; constitutional  liberty,  etc. 

While  it  is  beyond  doubt  that  all  these  functions, 
and  many  others  with  reference  to  the  delinquent, 
attach  to  the  State,  and  that,  according  to  Kohler,  these 
protective  activities  of  the  State  are  separate  from 
the  proper  scope  of  penal  law,  yet  his  absolute  theory- 
is  diminished  and  enlarged  by  the  fundamental  notions 
of  the  relative  theories. 

Kohler  holds  that  the  cultivation  of  spiritual  interests 
and  the  progress  of  civilization  do  not  diminish  crim- 
inality. He  insists,  on  the  contrary,  that  the  seeds  of 
progress  hold  the  elements  of  corruption,  which  we 
should  make  an  effort  to  eradicate.  Therefore,  the 
greater  the  degree  of  culture,  the  more  severe  should 
be  the  penal  law. 

Kohler  does  not,  however,  regard  this  increase  of 
criminality  as  an  obstruction  to  the  advance  of  civili- 
zation. Since  the  time  of  Nietzsche,  he  says,  it  has 
not  been  possible  to  question  that  it  is  not  the  moral 
worth  of  a  man,  but  his  influence  in  the  development 
of  culture  and  of  humanity  that  is  of  importance  in 
history.  It  seems,  therefore,  that  Kohler  agrees  with 


378  THIRD  APPENDIX 

those  who,  like  Durkheim,  look  upon  delictual  acts 
as  necessary  phenomena,  even  if  evil  ones. 

Kohler  is  today  perhaps  the  most  conspicuous  repre- 
sentative of  a  tendency  of  juridical  science  which  has 
taken  form  in  the  most  recent  times.  This  new  science 
has  already  established  a  large  part  of  its  discoveries, 
and  seeks  to  give  them  a  position  as  fundamental  prob- 
lems. I  refer  to  the  so-called  science  of  comparative 
law,  which  is  also  called  ethnological  jurisprudence, 
or  juridical  ethnology. 

The  reaction  against  the  abstract  impulse  of  Natural 
Law,  represented  by  the  Historical  School,  turned  the 
point  of  view  to  empirical  facts  as  a  secure  unified  basis 
of  scientific  construction.  In  order  to  understand  the 
law  as  the  conscience  of  the  people  it  was  necessary 
to  search  into  the  juridical  life  of  successive  genera- 
tions, into  the  continuity  of  this  life  which  gave  it  its 
character.  Resort  was  had  to  what  lay  close  at  hand. 
The  adherents  of  the  Historical  School,  notwithstanding 
that  here  and  there  a  voice  was  raised  which  proclaimed 
the  necessity  of  looking  to  the  whole  legislation  of 
ancient  and  modern  peoples  (Thibaut),  did  not  found 
their  doctrines  upon  fundamentals,  or  extend  their 
studies  beyond  the  Roman  law  or  the  German  law. 
The  Historical  School  was  principally  a  school  of  jurists 
preoccupied  not  with  an  investigation  of  the  law  but 
their  law. 

The  introduction  of  universal  history  is  due  prin- 
cipally to  the  influence  of  abstract  or  speculative  phil- 
osophy, to  Hegel  and  the  Hegelians.  It  was  one  thing 
to  assign  to  history  its  place  as  a  concept  of  the  world; 
it  was  another  to  discover  and  bring  to  light  its  secrets. 
The  latter  object  has  been  attained  as  the  result  of 
much  investigation.  When  Cans  planned  his  great 
work,  the  materials  were  not  yet  in  existence  for  a 
solidified  construction  of  his  labors. 


PHILOSOPHICAL  POSITION  379 

The  idea  of  gathering  up  these  materials  as  an  uni- 
versal history  of  the  law  took  form  after  the  middle  of 
the  last  century. 

Bachofen,  Maine,  MacLennan,  Morgan,  Post,  Howitt, 
Bernhoft,  Dargun,  Leist,  Letourneau,  Lubbock,  West- 
ermarck,  and  many  others  made  important  contri- 
butions to  the  result;  and  the  Journal  of  Comparative 
Law  in  Germany  (Zeitschrift  fur  vergleichende  Rechts- 
wissenschaff)  became  the  principal  repository  where 
the  new  discoveries  were  set  forth. 

These  investigators  were  not  content  simply  to  gather 
up  data,  a  great  deal  of  which  was  to  be  had  from  trav- 
elers and  missionaries,  or  to  be  excerpted  from  litera- 
tures, but  they  labored  to  co-ordinate  the  facts  of 
history  and  to  reconstruct  from  isolated  particulars, 
legal  institutions. 

This  new  science  had  hardly  begun  to  attain  expres- 
sion in  an  extension  of  its  scope,  when  it  received  the 
impact  of  the  realism  and  positivism  of  the  time,  and 
broke  its  moorings  to  navigate  on  its  own  account. 

Post  is  perhaps  the  most  eminent  representative  of 
that  aspect  of  the  science  of  comparative  law  which 
takes  on  a  constructive  function  and  raises  itself  up 
against  the  philosophical  conception  which  generated 
it,  and  the  historical  influence  which  nourished  it,  in 
an  aspiration  to  be  the  foundation  of  all  juridical  science. 

Post  rejects  conscience  as  the  legal  standard  and 
declares  that  experience  is  the  sole  basis  of  knowledge. 
In  order  to  fortify  experience  he  has  recourse  to  the 
investigation  of  the  legal  institutions  of  all  peoples. 
These  institutions  in  their  comparative  scope  are  not 
of  interest  for  local  legislation  and  have  no  connection 
with  the  conditions  of  the  moment,  except  as  elements 
for  the  elucidation  of  certain  phases  or  developments 
of  legal  institutions  (such,  for  example,  as  hereditary 


380  THIRD  APPENDIX 

position,  the  territorial,  feudal,  and  corporate  notions) 
which  find  universal  repetition  in  life  and  argue  for  uni- 
formity of  evolution  and  the  fundamental  unity  of 
human  nature. 

This  basic  unity  of  human  nature  is  one  of  the  axes 
of  this  doctrine,  since,  being  founded  on  this  unity,  it 
aspires  to  the  universality  of  experience  which  is  found 
in  the  facts  of  history.  Especially  is  this  true  of  primi- 
tive ages,  where  there  are  large  blanks  which  history 
cannot  fill  in.  These  vacancies  could  not  be  understood 
otherwise  than  by  virtue  of  the  hypothesis  which 
assumes  the  stages  of  savagery,  barbarism,  semi-civiliza- 
tion, and  culture,  as  the  phases  of  human  evolution. 

Ethnological  jurisprudence  thus  comes  into  conflict 
with  abstract  philosophy  of  law  and  historical  juris- 
prudence; and  therefore  the  doctrine  of  Post  has  had 
to  bear  the  assaults  of  both  camps. 

From  the  philosophical  side  it  is  urged,  for  example, 
by  Schuppe,  who  denies  that  there  is  any  universal  value 
in  the  method  of  comparative  law,  that  in  the  inves- 
tigation of  a  thing,  it  is  necessary  to  have  some  ante- 
cedent notion,  however  vague,  of  what  this  thing  is. 
There  is  no  Experience  without  a  general  notion  of  the 
object  of  experience.  Experience  is  not  able  to  seek 
juridical  phenomena,  nor  is  it  able  to  apply  a  juridical 
judgment  to  any  fact  without  the  aid  of  a  more  or  less 
definite  understanding  of  what  law  is,  which  is  a  notion 
like  all  other  general  concepts  which  are  given  to  us  by 
language  originally  in  an  obscure  form.  Although 
concepts  do  not  arise  except  by  comparison,  yet  com- 
parison is  not  the  only  agency  which  gives  them  form. 
Neither  is  it  necessary  to  know  the  history  of  all  peoples 
to  understand  the  nature  of  law,  any  more  than  it  is 
necessary  for  the  zoologist  or  the  botanist  to  study  all 
the  examples  of  a  species  in  order  to  arrive  at  a  scientific 


PHILOSOPHICAL  POSITION  381 

induction.  Although  the  common  element  must  be 
found  in  the  whole  species  and  in  each  individual  speci- 
men, yet  it  does  not  fall  to  say,  that  the  common  ele- 
ment is  discovered  by  a  mere  elimination  of  differences. 
Such  discovery  rather  depends  on  the  individual  apti- 
tude of  the  investigator.  One  observer  with  a  small 
number  of  specimens  may  arrive  at  a  scientific  general- 
ization which  another  observer  is  not  able  to  perceive 
in  his  examination  of  a  large  number  of  examples. 

On  the  historical  side,  some  writers  doubt  the  ad- 
vantage of  specialization  by  the  comparative  method 
over  the  critical  and  the  historical  method;  others  (as 
for  example,  Schroder)  would  confine  the  history  of  the 
law  to  the  Aryan  peoples,  and  leave  ethnology  to  deal 
with  the  others;  and  again  others,  like  Leist,  reject 
the  investigation  of  juridical  schemes  of  rational  affini- 
ties among  peoples  (which  Leist  thinks  is  the  scope  of 
comparative  law),  and  separate  for  study  the  institu- 
tions of  a  group  of  people  (like  the  Aryan  group) ,  apply- 
ing the  critical  historical  method  of  investigation. 

Post's  theory  is  not  the  only  one  in  the  science  of 
comparative  law.  At  any  rate,  there  are  other  notions 
which  are  presented  under  the  same  name  which  agree 
in  admitting  validity  to  the  comparative  method,  but 
do  not  agree  as  to  the  result  of  this  method,  or  as  to  the 
nature  of  the  comparison  to  be  employed. 

Chiefly,  there  is  a  large  group  of  jurists  who  cultivate 
a  parallel  and  yet  comparative  study  of  modern  laws 
as  accessory  and  auxiliary  to  the  knowledge  of  domes- 
tic law,  for  the  purpose  of  arriving  at  the  dominant 
ideas  of  the  age,  in  a  common  legislative  program,  or 
as  the  basis  of  a  civil  polity. 

Kohler  without  question  inclines  to  the  viewpoint 
of  Post  and,  like  him,  carries  his  comparative  legal 
investigation  by  preference  back  to  the  institutions  of 


382  THIRD  APPENDIX 

remote  ages,  and  to  primitive  and  semi-civilized  peoples. 
The  law  of  the  nigritic  Australians,  the  Papuans,  the 
Polynesians  and  the  Malays,  of  numerous  African  and 
American  tribes,  of  the  Aztecs,  Chinese,  Japanese, 
Egyptians,  Hebrews,  Assyrians,  and  Babylonians,  the 
Burman  and  the  Buddhist  law,  the  law  of  the  Mussul- 
man, East  Indian,  Armenian,  Greek,  and  the  Celt,  the 
Thibetan  law  and  many  others  have  been  the  object 
of  his  labors.  At  one  time,  he  has  sought  to  reconstruct 
their  point  of  contact;  at  another  time,  he  has  inves- 
tigated some  special  legal  manifestation;  and  again, 
his  studies  have  had  reference  to  some  definite  insti- 
tution, such  as  the  community  of  wives  (Weiber- 
gemeinschaff) ,  artificial  relationship  (kilnsiliche  Ver- 
wandschaff),  marriage,  matriarchy,  kin-revenge  (Blut- 
rache),  the  law  of  asylum,  or  the  ordeal. 

Sometimes  Kohler  regards  the  science  of  compara- 
tive law  as  a  kind  of  prehistorical  instrument,  which, 
by  a  method  of  its  own,  leads  us  up  through  the  uncer- 
tainties of  the  past  to  the  reach  of  German  historical 
knowledge.31 

Like  Post,  Kohler  reduces  the  various  juridical  sys- 
tems which  appear  in  remote  ages,  or  in  distant  places 
to  certain  types  in  which  he  distinguishes,  in  the  midst 
of  an  infinite  variety  of  customs  and  standards,  certain 
common  phases  of  a  general  evolution. 

The  fundamental  unity  of  mankind,  to  which  refer- 
ence was  made  above,  is  necessarily  the  basis  of  this 
method.  This  is  demonstrated  in  Kohler's  judgment 
by  the  identity  of  certain  customs  which  obtain  among 
peoples  widely  separated  and  in  different  ages.  The 
inferior  stages  of  cultural  progression  are  uniform  in 

"See  his  article,  "Die  Entwicklung  im  Recht,"  in  Grilnhut's  "Zeit- 
schrift  fur  das  Privat-  und  offentliche  Recht  der  Gegenwart,"  XIV  (1887) , 
p.  410  et  seq. 


PHILOSOPHICAL  POSITION  383 

their  general  outlines.  Differences  appear  among 
peoples  as  in  the  case  of  individuals  with  certain  somatic 
developments.  For  this  reason,  Kohler  rejects  many 
constructions  derived  from  comparative  law,  such 
as  those  of  Leist,  who  would  derive  from  the  identity 
or  similarity  of  certain  legal  institutions  among  various 
peoples,  the  prevailing  legal  spirit  among  them  in  the 
age  in  which  the  institutions  appeared. 

Kohler  does  not  content  himself  with  a  composition 
between  philosophy  of  law  and  universal  history.  He 
would  penetrate  them  intimately.  History  furnishes 
the  facts  and  phases  of  legal  evolution,  its  cultural 
antecedents,  its  consequences,  the  total  mechanism  of 
the  forces  and  obstructive  elements  which  have  deter- 
mined the  scope  of  life,  and  out  of  which  the  law  has 
come  as  one  of  their  products.  At  this  point,  philosophy 
gathers  up  these  materials,  and  investigates  which 
of  them  have  been,  and  which  will  be,  of  value  in  the 
juridical  order,  and  in  the  teleological  evolution  of  the 
universal  process. 

Neither  for  Kohler  nor  for  Post  can  there  be  any 
philosophy  of  law  without  universal  history.  And  if  a 
man  like  Hegel  was  able  in  a  certain  measure  to  con- 
struct such  a  philosophy,  it  was  due  to  the  fact  that 
he  had  divined  with  the  intuition  of  genius  the  posi- 
tive element  which  his  own  age  had  failed  to  recognize. 

The  agreement  between  Post  and  Kohler  does  not, 
however,  extend  further.  While  Post  starts  with  a 
kind  of  mechanical  pantheism  and  places  the  general 
evolution  of  law  at  the  base  of  his  pilosophy,  Kohler 
founds  his  system  on  the  Hegelian  doctrine  (with  the 
departures  before  indicated),  and  therefore  joins  with 
the  historical  element  another,  an  d  priori  factor,  the 
relation  between  which  is  not  methodological  as  with 
Post,  but  metaphysical  as  with  Hegel.  According  to 


384  THIRD   APPENDIX 

Hegel,  history  is  a  dialectic  unfoldment  which  proceeds 
in  consequence  of  the  internal  forces  which  impel  it 
by  an  ever  present  power;  and  which  philosophy 
constructs  stib  specie  aternitatis  in  the  form  of  a  concept. 
Finally,  the  underlying  factor  of  history  is  likewise 
different  in  Post  and  Kohler.  Post  bases  it  on  the 
ethnic  element,  and  Kohler  relies  on  the  cultural 
relation.  Bachofen  had  already  given  culture  a  deter- 
minate position  in  the  law;  but,  according  to  Kohler, 
culture  is  not  of  itself  the  sum  of  spiritual  forces  which 
at  any  time  are  operative  in  evolution.  There  is  a  law 
of  life,  an  immanent  finality  which  indefectibly  impels, 
in  various  ways,  mankind  to  its  highest  destiny. 

[Touching  the  latest  and  most  discussed  interpretation  of  idealism, 
see  Kohler,  "Bergson  und  die  Rechtsphilosophie,"  in  "Archiv  f.  R. 
u.  W.  Phil.,"  Band  vii,  Heft  i  (October,  1913),  pp.  56-69.  Kohler 
finds  nothing  essentially  original  in  the  "new  Spinoza,"  especially  in 
his  thoughts  on  evolution,  stating  that  all  this  has  long  been  taught 
in  the  school  of  Hegel.  Kohler  discovers,  however,  in  Bergson 's 
treatment  of  intuition  a  new  life  for  the  metaphysics  of  history  of 
great  importance  for  the  jurist,  as  is  shown,  as  he  thinks,  peculiarly 
in  the  jurisprudence  of  Rome  and  England. — Editor.} 


INDEX 


[The  numbers  refer  to  the  pages.] 


Abraham,  8. 

Acts,  275  ff. 

Administrative  Jurisdiction,  267  ff. 

Adoption,  115  ff. 

Adversarial  Procedure,  260  ff.,  291. 

Aetleidung,  116. 

Agriculture,  55,  56,  121,  177. 

Ahrens,  25,  347,  350. 

Albericus  de  Rosate,  9. 

Albertus  Magnus,  8,  10. 

Alexander  VI,  227. 

Alexander  of  Hales,  282,  288. 

Alfarabi,  220. 

Althusius,  223. 

Anaya,  274. 

Ancestor  Worship,  52,  212. 

Animals,  69:  as  value  representa- 
tives, 166ff :  liability  for,  188ff. 

Appeal,  the,  246  ff. 

Aquinas  (Thomas  Aquinas,  q.  v.) 

Arbeitsordung,  178. 

Archelaus,  350. 

Aristophanes,  218. 

Aristotle,  5,  6,  7,  86,  89.  90,  95,  129, 
217.  218,  220.  223,  326,  331, 
336,  345,  350,  351,  357,  370. 

Arrest,  248. 

Artificial  Relationship,  114  ff.,  382. 

Assessors,  256. 

Association    of   American  Law 
School,  vii. 

Attachment,  State,  266. 

Attempts,  287. 

Aufsichtsrecht,  78. 

Augury,  the,  251. 

Augustine,  8,  221,  350,  374. 

Ausgleichung,  187. 

Averroes,  xliv,  9,  220,  223,  326. 

Avicenna,  220. 

Aztecs,  221,  235.  382. 

Bachofen,  379.  384. 
Bailment,  149. 
Baldus,  9. 
Bankruptcy,  264  ff . 


Barter,  129  ff.,  163  ff. 

Bartolus,  9,  11. 

Bastiat,  360. 

Becket,  222. 

Beneficium  Excussionis,  160. 

Bentham,  354. 

Benutzungsrecht,  77. 

Bergbohm,  349. 

Bergson,  384. 

Berkeley,  19. 

Bernhoft,  379. 

Berolzheimer,   ix,   xxi,   xxiii,   269, 

321,  336,  337. 
Beschlag,  266. 
Bill  of  Rights,  229. 
Binding,  133. 

Blood  Fraternity,  114,  117  ff. 
Blutrache  (Kin-Revenge,  q.  v.) 
Bodinus,  223. 

Body  Pledge,  141, 142,  143,158,159. 
Body  Politic,  law  of,  207  ff. 
Bondo-Recht,  94,  191. 

Csesareanism,  221,  225. 

Caldwell,  Wm.,  xxxv  ff. 

Caliphate,  the,  221. 

Callicles,  350. 

Calvin,  362,  363. 

Campanella,  12,  338,  342. 

Capital,  56. 

Capital  Debt,  172. 

Capital  Punishment,  290. 

Capture  Marriage,  100,  106. 

Carlyle,  366. 

Carolina,  the,  285. 

Carter,  Orrin  N.,  xxv  ff. 

Castillejo,  335  ff. 

Causality,  33  (6). 

Chance,  29  (4),  89  ff.,  136,  137,  165, 

166,  373. 

Charlemagne,  220. 
Chieftainry,   45,   47,   213,   232  ff., 

246.  255,  278,  368,  369. 
Church  and  State,  221  ff. 
Claims,  84  ff..  258  ff. 


386 


INDEX 


[The  numbers  refer  to  the  pages.] 


Class  Constitution,  238. 

Class,  Law  of,  92  ff. 

Classical  School  of  Criminal  Law, 

372  ff. 

Clement,  St.,  362. 
Collectivism,  50  ff.,  120  ff.,  219. 
Collectivity  and  Individualization, 

49,  109,  120  ff. 
Communal    Ownership,    38,    109, 

120,  217. 

Community  of  Wives,  219,  382. 
Comparative  Law  xliii.ll,  106  (n.), 

378  ff. 

Compensation,  187  ff. 
Compulsory  Portion,  186,  203  ff. 
Compulsory  Training,  284. 
Compurgators,  254. 
Comte,  336,  361. 
Conditional  Sentence,  287. 
Congregationism,  36. 
Constantine,  222. 
Contingency  and  Law,  89  ff.  (see 

Chance). 

Contrat  Social,  10,  227. 
Council  of  Constance,  9. 
Courts,  255  ff. 
Criminal  Justice,  281  ff. 
Criminal  Law,  268  ff.,  372  ff. 
Criminal  Procedure,  291  ff. 
Criminology,  290,  292. 
Croce,  336,  337. 
Crusades,  221. 
Culpa  in  Concrete,  148. 
Culture,   Development  of,   28  ff.: 

and  Law,  58  ff. 
Culture  State.  208  ff. 
Curialists,  9,  222.  223. 
Cynics.  362,  363. 

Dante,  220,  223,  363. 
Dargun,  379. 

Darwin,  335,  354,  367,  370. 
Deceitful  Offenses,  290. 
Default,  262. 
Definitions,  30  (5). 
Demons,  Belief  in,  270  ff..  276. 
Deportation,  285. 
Descartes,  336,  337,  361.  363. 
Divine  Judgments,  251  ff.- 
Divisible  Inheritance,  196  ff. 
Doctrinalism,  365. 


Document,  the,  263. 
Dominicans,  8. 
Dubois,  223,  302. 
Dumas,  xviii. 
Duns  Scotus,  9,  351. 
Durkheim,  378. 

Eckhart,  xliv,  326. 
Egoism,  Necessity  of,  60,  125,  145. 
Eleatics,  xvi,  20,  337,  338,  339. 
Elective  Compensation,  91. 
Encyclopedia,  the,  336,  347,  349. 
Enlightenment    Period,    38,    347, 

365. 

Entail,  the,  204,  205. 
Epiphenomenonalists,  the,  360. 
Equity,  86. 
Erbschein,  88. 
Ethos.  319,  368. 
Eucken,  355. 

Evolution  and  Psychic  Life,  36. 
Evolution,  Teleology  of,  xxii. 
Execution,  259,  264,  ff. 
Exogamy,  103  ff. 
Expropriation,  133,  208. 
Extinction  of  Debts,  150  ff. 

Family  Education,  108  ff. 
Family  Law,  98  ff. 
Family  Organization,  105  ff. 
Family  Property,  109  ff. 
Fanaticism,  36. 
Federated  States,  297  ff. 
Feuerbach,  337,  360. 
Fichte,  13,  342. 
Fideicommissum,  205. 
Foster  Paternity,  109,  114. 
Fouilee,  346. 
Foundations,  206. 
Francis,  St.,  362,  363. 
Franciscans,  9. 
Frederick  the  Great,  10. 
Free  Portion,  203. 
Freiteil,  203. 
Fulfillment,  151  ff.,  161. 
Future  Estates,  204. 

Gabler,  337. 
Cans,  378. 
Gareis,  348. 
Gary,  x. 


INDEX 


387 


[The  numbers  refer  to  the  pages.] 


Geyer,  348. 

Ghibellines.  223. 

Gifts,  184  ff. 

Giner,  366. 

Goethe,  xvi,  xvii,  23,  325,  362. 

Good  Faith,    83,    133,    138.    139, 

144. 

Goschel,  337. 
Gottesurteil,  251  ff. 
Gray,  viii. 
Gregory,  St.,  362. 
Grotius,  6,  10,  223,  288,  351,  370. 
Group  Marriage,  51,  62.  100,  103, 

217. 

Guardianship,   118. 
Grundbuchrecht,  88. 
Gynarchy,  107. 

Hallische  Jahrbttcher,  337. 

Hamann.  365. 

Hauptgutschuld,  172. 

Hegel,  xxi,  xliv,  10,  11,  13.  14.  16, 
19,  20,  22,  23.  25,  26,  27,  41, 
43,  208,  230,  325,  326,  328, 
329,  331.  335  ff..  344.  353  ff.. 
357  ff.,  362  ff. 

Hegelian,  xxii. 

Hellwig,  273. 

Helotry,  214  (see  Slavery). 

Henry  II,  222. 

Heraclitus,  335,  338.  345. 

Herder,  23,  365. 

Hinrichs,  337. 

Hippias,  350. 

Historical  School,  10,  353,  354, 
360,  365,  378. 

Hobbes,  10,  219,  225,  352. 

Homer,  xviii. 

Horigen-Verhaltnisse,  78. 

Howitt,  379. 

Humanism,  365. 

Hume,  19. 

Hypotheca,  166. 

Identitatsphilosophie,  13. 
Ihering,  11,  25,  26,  184,  361. 
Illegitimate  Children,  111  ff. 
Illogical,  the,  in  History,  28  ff. 
Immaterial  Things,  72, 73, 77, 120  ff. 
Immovable  Things,  120  ff. 


Incas,  221. 

Individualism,  49  ff.;    120  ff.,  196. 

200,  205,  209. 

Indivisible  Inheritance,  196  ff. 
Inheritance,  192  ff. 
Inheritance  Agreements,  201  ff. 
Inquisitorial    Procedure,    260    ff., 

291,  292. 

Insurance,  149,  175  ff. 
Interest,  136,  170  ff. 
International  Law,  294  ff. 
Invention,  55,  122,  123. 

Jacobi,  366. 
Jains,  the,  339. 
James,  xxi. 
John  of  Paris,  223. 
John  of  Salisbury,  222,  225. 
Joint  Liability,  161  ff. 
Judge,  Functions  of  the,  267  ff. 
Judgment  of  God,  251  ff. 
Judgment,  Preliminary,  248. 
Judgments,  Final  and    Interlocu- 
tory, 260. 
Juristenrecht,  256. 
Juristic  Persons,  67,  81. 
Justice,  Administration  of,  241  ff. 
Jus  Gentium,  350. 
Justification  of  Punishment,  281  ff. 

Kant,  12,  14,  18,  19,  20,  26,  99,  142, 
319.  338,  339,  342.  344,  347. 
349,  352,  359. 

Kingship,  232  ff. 

Kin-Revenge,  64,  65,  268  ff.,  275 
ff.,  291,  382. 

Kirchmann,  360. 

Kocourek,  xv  ff . 

Kohler,  biography,  xv  ff . ;  works, 
xviii;  bibliography,  311;  phil- 
osophy of  law,  319  ff. ;  phil- 
osophical position,  335  ff. 

Kommenda-Geschaft,  173. 

Krause,  25.  336,  347,  358. 


Lamarck,  370. 
Lange,  346,  363. 
Lao-Tsze,  338. 
Lasson,  xxi,  27,  319  ff. 
Laungild,  185. 


388 


INDEX 


[The  numbers  refer  to  the  pages.] 


Law,  Distinguished  from  Morals, 
etc.,  59. 

Lawful  Acts,  82,  263. 

Law-Man,  256. 

Legal  Order  and  Peaceable  Regu- 
lation, 63  ff. 

Legal  State,  208  ff.,  371. 

Legislative  Policy,  210.  356. 

Leibniz,  336,  337. 

Leist,  379,  381,  383. 

Leopardi,  362. 

Leroy,  vi. 

Letourneau,  379. 

Liability,  187  ff.,  276. 

Liberalities,  147  ff. 

Liberty  of  Contract,  140. 

Licenses,  77. 

Life  Pension,  75,  76. 

Limitation,  Statutes  of,  31  (a). 

Limited  Inheritance,  204. 

Locke,  127,  228. 

Logical,  the,  in  History,  28  ff. 

Longobards,  Code  of,  185. 

Lubbock,  379. 

Luther,  363. 

Machiavelli,  227.  228. 

Mackenzie,  336. 

Maclennan,  379. 

Magic,  270. 

Mahabbarata,  33  (a). 

Maine,  379. 

Marriage  (see  Family  Law). 

Marsilius  of  Padua,  223. 

Marx,  163,  337,  360. 

Materialism,  xliv. 

Material  Things,  72,  120  ff. 

Matriarchy,    105,    107,    111,    193, 

382. 
Merkel.    25,    281.    348.    354.    372. 

274,  375. 
Metaphysics,    xxi,    xxii,    18,    339, 

346. 

Milk  Relationship,  114. 
Mill.  Stuart,  336. 
Miraglia,  ix. 
Money,  165  ff. 
Montesquieu,  229,  288,  349. 
Morgan,  379. 
Movable  Things,  120  ff. 
Mutterrecht,  328  (see  Matriarchy) . 


Natural  Law,  5,  6,  9,  10,  25,  26. 

75,  98.  222,  223  (n.).  230,  258, 

350  ff.,  359,  360,  368,  378. 
Negligence,  150,  276. 
Neo-Hegelianism,      11,     22,     336, 

337,  338,  340,  341. 
Neo-Hegelians,  xv. 
Neo- Kantianism,  26. 
Neo-Platonists,  335. 
Neubecker,  133. 
Neukamp,  349. 
Nietzsche,  11,    22,    27,    208,    335, 

366  ff.,  377. 
Nobility,  96,  214. 
Non-Contentious  Jurisdiction,  293. 
Notwehr,  64. 

Oath,  the,  254. 
Obligations.  72.  73,  134  ff. 
Occam.  9,  223. 
Ordeal,  the,  252,  382. 
Original  Acquisition,  127  ff. 
Ownership,  72,  120  ff..  127  ff.,  219. 

Palaver,  the,  261. 

Panlogism,  339. 

Pantheism,  220,  225,  337,  334,  345, 

348,  373. 
Parliament,    211,    225,    228,    232, 

236,  238  ff . 
Partition,  91. 

Partnership,  148,  173,  179  ff. 
Pathological  Conditions,  39. 
Patriarchy,  105,  107,  193  ff 
Paul,  St.,  374. 
Peaceable  Procedure.  293  ff. 
Peculium,  94. 
Personality,  80  ff. 
Personality,  Principle  of,  213. 
Persons,  Law  of,  92  ff. 
Petrarch,  363. 
Pflichtteil,  203. 

Philosophy,  Legal  and  General,  3  ff . 
Phoenicians.  184. 
Plato,   129,  216  ff.,  335,  338,  345. 

347,  350,  358,  367,  370.  371. 
Pledge,  72,  80,  141,  152  ff. 
Pledge  Service,  93. 
Plutarch,  xvi. 
Podebrad,  302. 
Polyandry.  100. 


INDEX 


[The  numbers  refer  to  the  pages.] 


Polygamy,  9,  100. 

Popular  Assembly,  the,  237  ff. 

Positive  Law,  xliii. 

Positivist  School  of  Criminal  Law, 

372  ff. 

Post,  379,  380  ff. 
Pound,  xvi. 
Praetorian  Edict,  11. 
Primogeniture,  198. 
Procedure,  243  ff. 
Proof,  262  ff. 
Property,  Law  of,  120  ff . ;  as  a  whole, 

191  ff. 

Protagoras,  350. 
Proudhon,  337. 
Psychic  Disposition,  43. 
Psychic  Impulses,  45. 
Public  Houses,  286. 
Pufendorf,  288. 
Punishment,  Need  of,  286  ff. 
Purchase  Marriage,  100. 
Purchase  of  Revenge,  271,  272. 

Rechtsstaat  (see  Legal  State). 

Records,  Public,  32,  (b),  88,  89. 

Recourse,   91. 

Referendum,  241. 

Religion  and  Procedure,  250  ff. 

Renan,  366. 

Renascence,  the,  228. 

Rentenkauf,  172. 

Representation,  196. 

Retaliation.  268  ff. 

Reversionary  Inheritance,  204. 

Richtiges  Recht,  328,  359. 

Rights  and  Cultural  Order,  66  ff . ; 
objects  of,  70  ff . ;  general  and 
limited,  71  ff . ;  types  of  limited, 
75  ff. ;  of  representation,  81; 
dual  system,  87  ff.,  133;  of 
personality,  259. 

Ring,  xxiii. 

Roder,  25. 

Romanticism,  353,  365. 

Rousseau,  6,  10,  225  ff.,  237.  347. 
349,  352. 

Ruge.  337. 

Sachemism,  369. 

Sanctuary.  64,  273,  274,  278,  382. 


San  Juan,  362. 

Sankara,  335.  344. 

Sankhya  School,  338  ff. 

Savanarola,  363. 

Savigny,  10,  335,  360. 

Schaffle,  354. 

Schelling.    11,    13.  335,   342,   345. 

353,  357.  370. 
Schlosser,  366. 
Schmidt,  Alfred,  228. 
Schoffengericht,  256. 
Scholasticism,  5.  7. 
Scholastics,  8,   10,   171,  288,  336. 

360,  374,  375. 

Schopenhauer,  9,  22,  335.  340.  374. 
Schroder,  381. 
Schubert,  222. 
Schiicking,  302. 
Schuppe,  354,  380. 
Schwarzenberg,  285. 
Securities,  78  ff.,  152  ff. 
Self-Help,  267. 

Separation  of  Property,  110  ff. 
Sequestration,  266. 
Service  Agreement,  177  ff. 
Servitudes,  71  ff.,  126. 
Skeptics  (Scotch).  12.  342. 
Slavery,  78,  92  ff.,  136,  141.  142, 

188,  191,213,241. 
Smith,  Adam,  129,  217. 
Sociology,  320,  321.  332. 
Socrates,  v.,  347. 
Solon,  xvi. 

Sophists,  the,  347,  350. 
Sources  of  Law,  86. 
Spaventa,  337. 
Speculation.  61,  146. 
Spencer,  336,  354,  358,  360. 
Spinoza,  225  ff..  335.  337,  338,  345. 

354,  374. 

Staatsvertrag,  6,  10.  224. 
Stahl,  354,  358. 

Stammler,  26,  349.  350.  354.  358. 

359. 

State  Activity,  241  ff. 
State  Administration,  241  ff. 
State  Law,  207  ff. 
State  Theorists,  216  ff. 
Statistics,  373. 
Stirner,  337. 
Stock  Company,  183. 


390 


INDEX 


[The  numbers 
Strauss,  337. 
Stuarts,  the,  225. 
Substitution,  Principle  of,  71,  192 
Substitutive  Family,  118  ff. 
Succession  of  Heirs,  204. 
Sufis,  xliv. 
Sufism,  9,  220,  326. 
Superman,  the,  364  ff. 
Super-National  Law,  295  ff..  299  ff 
Suretyship,  158  ff. 
Suttee,  101. 
Sylvester,  Pope,  222. 

Taboo,  67,  123. 

Technic  of  the  Law,  66  ff. 

Territoriality,  212,  215. 

Testamentary  Succession,  199  ff. 

Testimony,  263  ff. 

Theresa,  St.,  362. 

Thibaut,  378. 

Things,  Law  of,  120  ff. 

Thomas  Aquinas,  8,  10,  351. 

Title,  72,  77,  88, 

Title  of  Execution,  259. 

Tocqueville,  v. 

Torture,  39,  40,  255,  292. 

Totemism,  45,  211,  212,  369. 

Trade,  55. 

Treaties  of  Justice,  296. 

Treuga,  274. 

Trial  Maxims,  257. 

Trusts,  141. 

Two  Sword  Theory,  222. 


refer  to  the  pages.] 

Unlawful  Acts,  28,  263. 

Usucaption,  128. 

Usufruct,  72,  75,  76,  110,  155,  172. 

194. 
Usury  (see  Interest). 

Vedanta,  xliv,  338,  339. 
Vera,  337. 

Verhandlungsmaxime,  258. 
Verlagsrecht,  77. 
Veronese  School,  xviii. 
Village  Community,  219. 
Vis  Major.  150. 
Voet,  11. 
Volksrecht,  256. 
Vow,  the,  139. 


Wealth.  Culture  of.  54  ff. 
Weltanschauung,  256. 
Weregild,  271,  272. 
Westermarck,  379. 
Wills,  199  ff. 
Windscheid,  11. 

Witches,  Persecution  of,  39.  40. 
Wolff,  10,  347.  349.  350. 
Wundt,  346. 


Zalesky,  217. 
Zeller.  19. 
Zwischenurteile,  260. 


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